So, all goods have an implied warranty requiring they must be of at least average quality? How does that work? Does average have a different meeting in a legal context?
You call me up and I say "I never said it would work in a car, I just said it was an oil filter (true) which would fit into a 2019 Mazda (true)."
The law says "nice try, you can't be that pedantic. The ordinary purpose of oil filters it to actually filter oil in a car, so when you sold it, there was an understanding that it would work for that purpose."
ultimately, a judge.
Many legal systems, especially the American one, aren’t based on strict enumerable lists of what my lawyer friends would call “bright line tests”.
This is probably a good thing, all in all.
The law therefore specifies things in general terms and uses 'reasonableness', or "fitness for purpose", or what would be expected by an "average bystander" (in English law), etc. in the same way this piece of legislation does.
This allows courts and juries to then make a judgement on the infinite number of particular cases that get before them.
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(2) Goods to be merchantable 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.
Here is what the official comments to the UCC say:
Paragraphs (a) and (b) of subsection (2) are to be read together. Both refer, as indicated above, to the standards of that line of the trade which fits the transaction and the seller's business. “Fair average” is a term directly appropriate to agricultural bulk products and means goods centering around the middle belt of quality, not the least or the worst that can be understood in the particular trade by the designation, but such as can pass “without objection.” Of course a fair percentage of the least is permissible but the goods are not “fair average” if they are all of the least or worst quality possible under the description. In cases of doubt as to what quality is intended, the price at which a merchant closes a contract is an excellent index of the nature and scope of his obligation under the present section.
So if you understand (a) and (b) in unison, it means that you can't sell someone a lot of goods but then send them all below-average quality units. But, of course, a truck load of apples can still have a "fair percentage" of low-quality apples. Where you're selling a single item, like a computer, then (a) is the better lens of looking at it.
None of this is legal advice. I'm not your lawyer.
These are all default rules, like most of contract law. A particular contract can by its express terms lay down a different rule, such as disclaiming any warranty (as-is) or specifying its own terms of warranty (an express warranty).
[1] What you described is just a straight-up breach of contract, even in the absence of a warranty. If you order USDA Choice meat, a shipment of USDA Select meat is such a breach of contract. In agriculture, and especially outside of meat, some of a shipment will always fall outside of the quality range. This is dealt with in the grading definition. So when you buy USDA Grade AA eggs, that actually means that at least 72% of the eggs are AA, and of the remaining, 10% are at least A and the balance can be B (basically... see https://www.ams.usda.gov/grades-standards/shell-egg-grades-a... ).
Vanishingly few if any contain 11 or fewer yolks.
this is the pedantic part. Normal usage of average means "pretty much what I expected", which is what they are trying to convey, imo.
In any case, "average" does not mean "arithmetic mean." It means, mathematically, any of the median, mode, or mean or in standard vernacular, of typical or usual characteristics (i.e., close to mode).
You don't get to just arbitrarily pick a definition that fits your viewpoint and start going "all due respect" on other people.
In this case we're not in a mathematical context though.
Ludicrously pedantic nitpick: this only applies to finite sets - consider the sequence 1,1/2,1/3,1/4,... (the harmonic series). The average (mean, median, mode[0]) is (depending on how pedantic you want to be) either 0 or 0+ε[1], but in any case strictly less than any positive real number, while every element of the sequence is a positive real number.
So it's not true by definition; it's a consequence of the basic sanity constraints that you're working with.
0: Strictly speaking mode only applies to continuous ditributions (ie, with a continuous probability density function) or fully discrete distibutions (eg heads vs tails), but 0 is the only (real number) x such that for any sufficiently small positive distance δ, the number of elements in x±δ is strictly greater than the number in x±2δ but not in x±δ (namely, all but a finite number of the inifitely many elements in x±2δ are also in x±δ).
1: Where ε is some surreal number[2] strictly less than any positive real number, but not necessarily 1/ω specifically.
When is that not the case? I'll grant you that not all distributions are "normal" distributions, so when is it not the case that 40 percent are not below average?