# Title 51 — Sales and Exchanges

## Chapter 51-26 — Farm Equipment Nonconformity Remedies

### § 51-26-01. Definitions.

As used in this chapter:
1. "Collateral charges" means those additional charges to a consumer not directly
attributable to a manufacturer's suggested retail price label for farm machinery.
2. "Comparable farm machinery" means an identical or reasonably equivalent piece of
farm machinery.
3. "Consumer" means the purchaser, other than for the purposes of resale of new farm
machinery primarily used for agricultural purposes; any person to whom the new farm
machinery is transferred for the same purposes during the duration of an express
warranty applicable to that new farm machinery; and any other person entitled by the
terms of the warranty to enforce the obligations of the warranty.
4. "Express warranty" means any written affirmation of fact or promise made by a
manufacturer to a consumer in connection with the sale of new farm machinery which
relates to the nature of the material or workmanship or will meet a specified level of
performance over a specified period of time. The term does not include an implied
warranty.
5. "Farm machinery" means any self-propelled equipment or machinery used for
agricultural purposes being transferred for the first time from a manufacturer,
distributor, or new farm machinery dealer which has not been registered or titled and
which is offered for sale, barter, or exchange by a dealer who is franchised to sell,
barter, or exchange that particular make of new farm machinery. The term includes
farm machinery propelled by power other than muscular power but does not include
off-road vehicles other than self-propelled equipment and machinery used for
agricultural purposes.
6. "Manufacturer" means any person engaged in the manufacturing or assembling of new
farm machinery as a regular business.
7. "Nonconformity" means any condition of the farm machinery which makes it impossible
to use for the purpose for which it was intended.
8. "Reasonable allowance for consumer use" means:
a. That amount attributable to use by the consumer before the consumer's first
report of the nonconformity to the manufacturer or its authorized dealers;
b. That amount attributable to use by the consumer during any period subsequent to
the first report of nonconformity when the farm machinery is not out of service by
reason of repair of the reported nonconformity; and
c. That amount attributable to use by the consumer of the farm machinery provided
by the manufacturer or its authorized dealer while the machine is out of service
by reason of repair of the reported nonconformity, but not less than the fair rental
value of the farm machinery.
### § 51-26-02. Law applicable to breach of new farm machinery warranties - Report of

nonconformity required - Repairs - Duty of manufacturer or agent.
Notwithstanding any other provision of law, a sale of new farm machinery is governed by
this chapter. For the purposes of this chapter, if new farm machinery does not conform to all
applicable express warranties and the consumer reports the nonconformity to the manufacturer
or its agent during the term of the express warranties or during the period of one year following
the date of original delivery of the new farm machinery to the consumer, whichever period
expires earlier, the manufacturer or its agent shall make any necessary repairs to conform the
new machinery to the express warranties, notwithstanding the fact that the repairs are made
after the expiration of the term or the one-year period.

### § 51-26-03. Replacement of farm machinery or refund of purchase price - Allowance

deducted for consumer's use - Refund.
If the manufacturer or its agent cannot conform the new farm machinery to any applicable
express warranty by repairing or correcting any default or condition that substantially impairs the
use or market value of the new farm machinery to the consumer after a reasonable number of
attempts, the manufacturer shall give the consumer the option of having the manufacturer either
replace the new farm machinery with a comparable new farm machinery acceptable to the
consumer, or take title of the machine from the consumer and refund to the consumer the full
purchase price, including all reasonably incurred collateral charges, less a reasonable
allowance for the consumer's use of the machine. The subtraction of a reasonable allowance for
use shall apply when either a replacement or refund of the new farm machinery occurs. Refunds
must be made to the consumer and lienholder of record, if any, as their interests may appear.
### § 51-26-04. Affirmative defenses.

1. It is an affirmative defense to any claim under this chapter that:
a. An alleged nonconformity does not substantially impair the use, market value, or
safety of the farm machinery;
b. A nonconformity is the result of abuse, neglect, or unauthorized modifications or
alterations of farm machinery by a consumer;
c. A claim by a consumer was not filed in good faith; or
d. Any other affirmative defense allowed by law.
2. It is presumed that a reasonable number of attempts have been undertaken to
conform new farm machinery to the applicable express warranties if within the terms,
conditions, or limitations of the express warranty, or during the period of one year
following the date of original delivery of the new farm machinery to a consumer,
whichever expires earlier, either:
a. The same nonconformity has been subject to repair five or more times by the
manufacturer or its agents and the nonconformity continues to exist; or
b. The new farm machinery is out of service by reason of repair of the
nonconformity by the manufacturer or its agents for a cumulative total of thirty or
more working days, exclusive of downtime for routine maintenance as prescribed
by the manufacturer, since delivery of the new farm machinery to the consumer.
The thirty-day period may be extended by a period of time during which repair
services are not available to the consumer because of conditions beyond the
control of the manufacturer or its agents.
### § 51-26-05. Information on remedies to be furnished consumer - Notice of complaint to

manufacturer required - Manufacturer's duties.
1. The manufacturer shall provide information for consumer complaint remedies with
each new farm machinery. Before taking action under this chapter, a consumer shall
give written notification to the manufacturer of the need for the repair of the
nonconformity to allow the manufacturer an opportunity to cure the alleged defect. The
manufacturer immediately shall notify the consumer of a reasonably accessible repair
facility of a franchised new farm machinery dealer to conform the new farm machinery
to the express warranty. After delivery of the new farm machinery to an authorized
repair facility by the consumer, the manufacturer shall conform the new farm
machinery to the express warranty within thirty calendar days in appropriate
seasonable use times and within sixty days in other times. The agriculture
commissioner shall designate appropriate seasonal use times for all machinery
covered by this chapter. Upon notification from the consumer that the new farm
machinery has not been conformed to the express warranty, the manufacturer shall
inform the consumer if an informal dispute settlement procedure has been established
by the manufacturer. If prior notice by the manufacturer of an informal dispute
settlement procedure has been given, no further notice is required. If any repair that
may be required under any warranty takes more than fourteen working days to
complete, the manufacturer shall supply at no cost a like piece of farm machinery for

use by the consumer if requested by the consumer during the time of repair. The
manufacturer shall reimburse any costs incurred by a dealer under this chapter.
2. An action brought under this chapter must be commenced within six months following
expiration of the terms, conditions, or limitations of the express warranty or within
eighteen months following the date of original delivery of the new farm machinery to a
consumer, whichever is earlier. However, if a consumer resorts to an informal dispute
settlement procedure, any action must be commenced within ninety days following the
final action of any panel established pursuant to the procedure. If an action is brought
under this chapter, the prevailing party may recover any court costs and reasonable
attorney's fees.
### § 51-26-06. Application - Dealers reimbursed for warranty repair.

1. If warranty repair work or service is performed for a consumer by a farm equipment
dealer under a manufacturer's express warranty, the manufacturer shall provide the
dealer with reasonable and adequate compensation for diagnostic work, as well as
repair service, parts, and labor, for warranty work compensation, a product
improvement program, a maintenance plan, an extended warranty, a certified
preowned warranty or a service contract, issued by the manufacturer or distributor or
its common entity. In addition, a manufacturer shall provide reasonable and adequate
time allowances for the diagnosis and performance of warranty work and service for
the work performed and the time allowances may not be less than the average time
spent by the dealer on similar work for nonwarranty customers. The hourly labor rate
and parts reimbursement rate paid by a manufacturer to the dealer under this
subsection may not be less than the average rate charged by the dealer for similar
service or sales to nonwarranty customers. A manufacturer or distributor may not pay
its dealers an amount of money for warranty work, parts, or service that is less than
the average rate charged by the dealer for similar service or sales to nonwarranty
customers. The dealer may accept the manufacturer's or supplier's warranty labor
reimbursement terms and conditions in lieu of the above.
2. The compensation required under subsection 1 includes transportation services,
including labor and equipment, necessary to transport equipment under warranty to
perform the service and to return the equipment to the customer. If transporting the
equipment to the dealership to perform the service is not mechanically or financially
feasible, the compensation required under subsection 1 includes travel to and from the
location of the equipment if the service or repairs are performed at the location of the
equipment. Reimbursement for travel time required under this subsection may not
exceed six hours.
3. A manufacturer shall pay a dealer on a claim made by a dealer under this section
within thirty days of the approval of the claim. The manufacturer shall either approve or
disapprove a claim within thirty days after the claim is submitted to the manufacturer.
The manufacturer may prescribe the manner in which and the forms on which the
dealer must present the claim. A claim not specifically disapproved in writing within
thirty days after the manufacturer receives the claim must be construed to be
approved and the manufacturer shall pay the claim within thirty days.
4. As used in this section, "farm equipment" has the same meaning as in section
51-07-01.2.
