1.    Unless excluded or modified (section 41-02-33), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section, the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

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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; b.    In the case of fungible goods, are of fair average quality within the description; c.    Are 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.    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.

3.    Unless excluded or modified (section 41-02-33), other implied warranties may arise from course of dealing or usage of trade.