Breach of Warranty Demand Letter - Colorado

DEMAND LETTER - BREACH OF WARRANTY

State of Colorado

[LAW FIRM NAME]
[Firm Address]
[City], Colorado [ZIP]
Tel: [________________________________]
Fax: [________________________________]
Email: [________________________________]
Colorado Bar No. [________________________________]

DATE: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL TO: [________________________________]

[Recipient Name]
[Title/Position]
[Company Name]
[Street Address]
[City, State ZIP]

Re: FORMAL DEMAND - BREACH OF EXPRESS AND IMPLIED WARRANTIES
Our Client: [________________________________]
Product/Goods: [________________________________]
Model/Serial No.: [________________________________]
Purchase Date: [__/__/____]
Purchase Price: $[________________________________]
Invoice/Order No.: [________________________________]
Total Demand Amount: $[________________________________]

Dear [Recipient Name]:

This firm represents [Client Name] ("our Client") in connection with the purchase of [Product Description] (the "Product") from [Company Name] ("your company"). Despite timely notice of defects and reasonable opportunity to cure, your company has failed to honor its warranty obligations under both Colorado and federal law. This letter constitutes a formal demand for resolution of all claims arising from your breach of express and implied warranties.

THIS LETTER IS WRITTEN IN COMPLIANCE WITH PRE-SUIT REQUIREMENTS AND SHALL SERVE AS THE REQUISITE NOTICE AND DEMAND UNDER THE MAGNUSON-MOSS WARRANTY ACT, 15 U.S.C. § 2301 ET SEQ., AND THE COLORADO CONSUMER PROTECTION ACT, C.R.S. § 6-1-101 ET SEQ.

I. COLORADO WARRANTY LEGAL FRAMEWORK

A. Express Warranties - C.R.S. § 4-2-313

Under Colorado's adoption of the Uniform Commercial Code, express warranties are created by any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain. Express warranties also arise from any description of the goods made part of the basis of the bargain, or from any sample or model made part of the basis of the bargain. C.R.S. § 4-2-313(1)(a)-(c). It is not necessary that the seller use formal words such as "warrant" or "guarantee" or have a specific intention to make a warranty. C.R.S. § 4-2-313(2).

Your company made the following express warranties regarding the Product:

☐ Written warranty in sales documentation dated [__/__/____], stating: [________________________________]

☐ Oral representations made by [Sales Representative Name] on or about [__/__/____], including: [________________________________]

☐ Advertising, marketing, or promotional materials representing: [________________________________]

☐ Product specifications, descriptions, or technical data sheets providing: [________________________________]

☐ Sample or model provided prior to purchase demonstrating: [________________________________]

B. Implied Warranty of Merchantability - C.R.S. § 4-2-314

Under C.R.S. § 4-2-314, a warranty that goods shall be merchantable is implied in every contract for sale if the seller is a merchant with respect to goods of that kind. To be merchantable, goods must at minimum: (a) pass without objection in the trade under the contract description; (b) be of fair average quality within the description; (c) be fit for the ordinary purposes for which such goods are used; (d) run within the variations permitted by the agreement of even kind, quality, and quantity within each unit and among all units involved; (e) be 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.

The Product fails to meet the standards of merchantability because:

☐ The Product does not pass without objection in the trade: [________________________________]

☐ The Product is not fit for ordinary purposes: [________________________________]

☐ The Product does not conform to label/packaging representations: [________________________________]

☐ Other merchantability failures: [________________________________]

C. Implied Warranty of Fitness for Particular Purpose - C.R.S. § 4-2-315

[Select one:]

☐ Applicable. At the time of contracting, your company had reason to know the particular purpose for which the goods were required, specifically: [________________________________]. Our Client relied on your company's skill and judgment to select and furnish suitable goods. The Product has failed to satisfy this particular purpose because: [________________________________].

☐ Not applicable to this claim.

D. Magnuson-Moss Warranty Act - 15 U.S.C. § 2301 et seq.

[Select if applicable:]

☐ Applicable. The Product is a "consumer product" as defined by 15 U.S.C. § 2301(1), and your company is a "supplier" and/or "warrantor" under the Act. The written warranty provided constitutes a [full/limited] warranty under 15 U.S.C. § 2303. Your company has failed to comply with the warranty obligations, entitling our Client to damages under 15 U.S.C. § 2310(d), including attorney fees under 15 U.S.C. § 2310(d)(2).

☐ Not applicable (commercial/non-consumer product).

E. Colorado Consumer Protection Act - C.R.S. § 6-1-101 et seq.

Your company's conduct constitutes an unfair or deceptive trade practice under C.R.S. § 6-1-105 because:

☐ False representation as to the characteristics, uses, or benefits of goods (§ 6-1-105(1)(e))

☐ Representation that goods are of a particular standard, quality, or grade when they are not (§ 6-1-105(1)(g))

☐ Use of deceptive guarantees or warranties that have the capacity to mislead purchasers (§ 6-1-105(1)(h))

☐ Failure to disclose material information concerning goods (§ 6-1-105(1)(u))

☐ Other deceptive practices: [________________________________]

Under C.R.S. § 6-1-113, a person found to have engaged in deceptive trade practices is liable for actual damages plus costs and reasonable attorney fees. Where bad faith conduct is established by clear and convincing evidence, the court may award treble damages (three times actual damages).

II. WARRANTY EXCLUSION AND LIMITATION ANALYSIS

A. Attempted Warranty Disclaimers - C.R.S. § 4-2-316

Your company may attempt to disclaim warranty liability. Under Colorado law, the following rules apply:

B. Limitation of Remedies - C.R.S. § 4-2-719

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in the UCC. C.R.S. § 4-2-719(2). Where your company has repeatedly failed to repair or replace the Product, the limited remedy of repair or replacement has failed of its essential purpose, and our Client is entitled to the full range of UCC remedies.

Additionally, limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable under C.R.S. § 4-2-719(3).

C. Third-Party Beneficiary Rights - C.R.S. § 4-2-318

Colorado has adopted Alternative A of UCC § 2-318, extending warranty protections to any natural person who is in the family or household of the buyer or who is a guest in the buyer's home, if it is reasonable to expect that such person may use, consume, or be affected by the goods.

[If applicable:] ☐ Our Client is a third-party beneficiary of the warranties as [________________________________].

III. CHRONOLOGY OF BREACH AND NOTICE

A. Purchase and Delivery

B. Discovery of Defects

C. Notice and Opportunity to Cure

Under C.R.S. § 4-2-607(3)(a), the buyer must notify the seller of any breach within a reasonable time after the buyer discovers or should have discovered the breach.

D. Failure to Cure

Despite timely notice and reasonable opportunity to cure, your company has failed to remedy the breach because:

☐ Refused to repair or replace the Product

☐ Attempted repair on [____] occasion(s) but failed to resolve the defect(s)

☐ Offered only a partial credit of $[________________________________], which is inadequate

☐ Failed to respond to notice within a reasonable time

☐ Other: [________________________________]

IV. DAMAGES ANALYSIS

A. Measure of Damages - C.R.S. § 4-2-714

Under C.R.S. § 4-2-714(2), the measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

B. Itemization of Damages

Direct Damages (C.R.S. § 4-2-714(2)):

Incidental Damages (C.R.S. § 4-2-715(1)):

Consequential Damages (C.R.S. § 4-2-715(2)):

Statutory and Additional Damages:

C. Total Damages Summary

V. STATUTE OF LIMITATIONS ANALYSIS

CRITICAL NOTE: Colorado has modified the standard UCC statute of limitations. While C.R.S. § 4-2-725 provides a four-year limitation period for UCC sales actions, C.R.S. § 13-80-101 imposes a three-year general limitation period for all contract actions, including actions under the Uniform Commercial Code. Colorado courts have held that C.R.S. § 13-80-101 controls over the UCC's four-year period.

Accrual: Under C.R.S. § 4-2-725(2), a cause of action for breach of warranty accrues when tender of delivery is made, except where a warranty explicitly extends to future performance, in which case the cause of action accrues when the breach is or should have been discovered.

All claims are timely filed.

VI. DEMAND FOR RESOLUTION

Based on the foregoing, we hereby demand that, within thirty (30) days of receipt of this letter, your company take one of the following actions:

☐ Option 1 - Full Refund: Refund the full purchase price of $[________________________________], plus incidental and consequential damages totaling $[________________________________], for a total payment of $[________________________________].

☐ Option 2 - Replacement: Provide a conforming replacement product of equal or greater value, plus payment of $[________________________________] for incidental and consequential damages sustained.

☐ Option 3 - Repair and Compensation: Complete all necessary repairs to bring the Product into conformity with all warranties, plus payment of $[________________________________] for damages sustained during the period of nonconformity.

☐ Option 4 - Negotiated Resolution: Contact the undersigned within ten (10) days to discuss an alternative resolution acceptable to our Client.

VII. CONSEQUENCES OF FAILURE TO RESPOND

If your company fails to respond satisfactorily within the time specified, our Client is prepared to commence litigation seeking:

1. All compensatory damages (direct, incidental, and consequential) under C.R.S. §§ 4-2-714 and 4-2-715
2. Treble damages for deceptive trade practices under C.R.S. § 6-1-113 (upon proof of bad faith by clear and convincing evidence)
3. Attorney fees and costs under both the Colorado Consumer Protection Act (C.R.S. § 6-1-113) and the Magnuson-Moss Warranty Act (15 U.S.C. § 2310(d)(2))
4. Prejudgment interest at 8% per annum under C.R.S. § 5-12-102
5. All other relief to which our Client may be entitled at law or in equity

Please direct all correspondence regarding this matter to the undersigned. Do not contact our Client directly.

Respectfully submitted,

[LAW FIRM NAME]

By: _______________________________
[Attorney Name]
Colorado Bar No. [________________________________]
[Email]
[Telephone]

cc: [Client Name]
cc: [Other Parties, if applicable]

ENCLOSURES

☐ Purchase receipt/invoice
☐ Written warranty documentation
☐ Correspondence regarding defect notifications
☐ Photographs of defects
☐ Repair records/estimates
☐ Expert report (if obtained)
☐ Marketing/advertising materials
☐ Other: [________________________________]

COLORADO BREACH OF WARRANTY PRACTICE NOTES

Pre-Suit Considerations

☐ Statute of Limitations: Colorado applies a 3-year limitation period under C.R.S. § 13-80-101, not the standard 4-year UCC period. Calendar the deadline from tender of delivery (or discovery for future performance warranties).

☐ Notice Requirement: Buyer must give notice of breach within a reasonable time after discovery under C.R.S. § 4-2-607(3)(a). Failure to give timely notice bars all remedies. Document all notice thoroughly.

☐ Privity: Colorado adopted Alternative A of UCC § 2-318 (C.R.S. § 4-2-318), extending warranty protections to family, household members, and houseguests. For other third parties, privity requirements may apply.

☐ CCPA Pre-Suit Notice: While the Colorado Consumer Protection Act does not require a formal pre-suit notice, sending one strengthens the claim and demonstrates good faith.

☐ Magnuson-Moss Pre-Suit: For claims under the Magnuson-Moss Warranty Act, if the warrantor has an informal dispute resolution mechanism that complies with FTC standards (16 C.F.R. Part 703), the consumer may be required to exhaust that procedure first. Verify whether such a mechanism exists.

☐ Federal Jurisdiction (Magnuson-Moss): Individual claims under Magnuson-Moss require an amount in controversy exceeding $50,000 for federal jurisdiction (15 U.S.C. § 2310(d)(3)(B)). Class actions require 100+ named plaintiffs. Otherwise, file in state court.

Damages Considerations

☐ Prejudgment Interest: Colorado allows prejudgment interest at 8% per annum (C.R.S. § 5-12-102) from the date damages became liquidated or determinable.

☐ Attorney Fees: Available under CCPA (C.R.S. § 6-1-113) and Magnuson-Moss (15 U.S.C. § 2310(d)(2)), but not under the UCC alone unless contractually provided.

☐ Treble Damages: Under C.R.S. § 6-1-113, treble damages are available only upon proof by clear and convincing evidence of bad faith conduct. Document all facts supporting bad faith.

☐ Consequential Damages: May be excluded by agreement unless the exclusion is unconscionable. For consumer goods, exclusion of consequential damages for personal injury is prima facie unconscionable (C.R.S. § 4-2-719(3)).

Warranty Disclaimer Challenges

☐ Merchantability Disclaimer: Must specifically mention "merchantability" and must be conspicuous if in writing (C.R.S. § 4-2-316(2)).

☐ "As Is" Sales: Examine whether "as is" or "with all faults" language was used and whether it was conspicuous. Buyer's pre-purchase examination or refusal to examine may eliminate implied warranties for defects the examination should have revealed (C.R.S. § 4-2-316(3)(b)).

☐ Magnuson-Moss Override: Under the Magnuson-Moss Act (15 U.S.C. § 2308), a supplier providing a written warranty on a consumer product may not disclaim implied warranties. This federal rule may preempt state-law disclaimers.

☐ Unconscionability: Challenge any attempted limitation or exclusion under C.R.S. § 4-2-302 (unconscionability).

Sources and References

• Colorado Revised Statutes, Title 4, Article 2 (Sales): https://law.justia.com/codes/colorado/title-4/article-2/
• Colorado Consumer Protection Act, C.R.S. § 6-1-101 et seq.: https://law.justia.com/codes/colorado/title-6/fair-trade-and-restraint-of-trade/article-1/
• C.R.S. § 13-80-101 (Statute of Limitations): https://law.justia.com/codes/colorado/title-13/limitation-of-actions/article-80/section-13-80-101/
• Magnuson-Moss Warranty Act: https://www.ftc.gov/legal-library/browse/statutes/magnuson-moss-warranty-federal-trade-commission-improvements-act
• FTC Businessperson's Guide to Federal Warranty Law: https://www.ftc.gov/business-guidance/resources/businesspersons-guide-federal-warranty-law