Legal Question in Product Liability in Illinois

Actually this is an interesting question. The question here is whether the container was the "basis of the bargain". Most sellers would probably say no, the basis of the bargain was the cologne, not the bottle, even if there was a picture of the product bottle (which one could call a "promise, description, or sample"). Only when both parties understand the basis of the bargain includes the container would the "whole" product (container and actual product) be deemed to be warranted under what we call the "Uniform Commercial Code".

It is different from a situation where there is a product on-line available in more than one color and you get to click on a color but they send you the wrong color product. This would be a breach of warranty since the color was specifically part of the "basis of the bargain" and in that case the seller would be obligated to return it with one exception. If the package that arrived was marked with the WRONG color and you opened it anyhow, the seller may not be responsible to take it back!!! But if the package was marked with the color you selected but was PACKED with the wrong-color product, then the seller would be bound to take it back.

Stuff happens....but this is basically the way the UCC hashes things out.