Haw. Civil Jury Instr. 12.4

To prove that a representation, affirmation of fact, or

promise regarding the goods was part of the basis of the

bargain:

1. Plaintiff(s) must prove that seller(s)/lessor(s) made

the representation, affirmation of fact, or promise during the

bargaining process; and

2. Seller(s)/lessor(s) must fail to prove that the

resulting bargain did not rest at all on

seller’s(s’)/lessor’s(s’) representation, affirmation of fact,

or promise.

Some statements by seller(s)/lessor(s) cannot fairly be

viewed as having become a basis of the bargain, such as

statements about the general value of the goods, or about

seller’s(s’)/lessor’s(s’) general opinion regarding that value,

or even seller’s(s’)/ lessor’s(s’) exaggerated claims about the

superiority of his/her/its/their goods, sometimes known as

“puffing.”

Whether a statement of opinion regarding the goods is a

representation, affirmation of fact, or promise that created an

express warranty depends upon all of the circumstances

surrounding the statement. A statement of opinion that is the

expression of an individual’s conclusion or personal judgment,

but does not purport to be based on actual knowledge, does not

create a warranty.

In determining whether a particular statement was a

representation, affirmation of fact, or promise that created an

express warranty—as opposed to an affirmation of the general

value of the goods or “puffing” that did not create a warranty—

you may consider the surrounding circumstances under which the

statement was made, the manner in which the statement was made,

and the ordinary effect of the words used.

You may also consider the relationship of the parties and

the subject matter with which the statement was concerned.