The purpose of this discussion is to examine implied warranties in order to determine if their application is limited to sales transactions. In approaching this problem, it is necessary to understand the development of warranty. In the early law, warranty was a pure action of tort.' Special assumpsit developed over a hundred years later than warranty and was based on the tort action of warranty. Thus, at the beginning, assumpsit was thought of as a tort action. Later assumpsit came to be regarded as similar to covenant and hence became classified with contract actions. Warranty was still considered a tort action, and it was not until 1778 in 'Stuart v. Wilkins that an action of warranty was brought in assumpsit. It was in this manner that the obligation of a warrantor came to be thought of as contractual in nature.
Robert B. Deen Jr. and Charles H. Warfield,
Should the Doctrine of Implied Warranties be Limited to Sales Transactions?,
2 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol2/iss4/12