Implied warranty: merchantability; usage of trade

§ 28:2—314. Implied warranty: merchantability; usage of trade (1) Unless excluded or modified (section 28:2—316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect-to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantible must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any. (3) Unless excluded or modified (section 28:2—316), other implied warranties may arise from course of dealing or usage of trade.