HOWERTON, Judge.

This is an appeal from a summary judgment dismissing Count I of appellant’s three-count complaint. The dismissal of Count I was deemed to be a final, appeala-ble judgment. With this we agree and accept jurisdiction.

The essential facts are that the parties entered into an oral agreement whereby appellant was to have an exclusive dealer-distributorship for appellee’s garage doors in a territory extending for a 50-mile radius from Lexington, Kentucky. The agreement was entered into on or about March 1, 1974. The appellee agreed to sell and deliver to the appellant its garage doors, operators and parts at the factory distributor price, and the appellant agreed to sell, install and service Raynor products exclusively, thereby establishing a relationship of dealer-distributor and manufacturer-supplier. There is no real dispute concerning the nature of the relationship.

As a result of the agreement, the appellant borrowed substantial sums of money in order to make certain capital expenditures, purchase an inventory, and to provide working capital for starting the business, including the rental of storage and office space, employment of personnel, and the purchase of a service truck, tools and equipment.

After two years of what appears to have been decreasing sales of Raynor products in the Lexington area, appellee notified the appellant on or about June 30,1976, that as of that date the relationship was terminated. Appellant was also notified that Helton Overhead Door Sales had been established by the appellee as the new dealer-distributor for the area, and that the appellant would be required to order all future doors, *642operators and parts from the new dealer-distributor.

Appellee’s motion for a summary judgment was based on the ground that the agreement was for an indefinite duration, and that it could be terminated at will by either party. The appellant resisted the motion on the theory that he was entitled to reasonable notice of appellee’s intention to terminate the agreement.

On April 20,1977, the circuit court granted the summary judgment and entered its memorandum opinion, setting forth its four reasons for the judgment. Appellant had relied in part upon the provisions regarding sales in the Uniform Commercial Code, and specifically subsections (2) and (3) of KRS 355.2-309. The trial court concluded that the Code, as it applies to the sale of goods, was not intended to apply to the situation in this case. Secondly, the court concluded that even if the Uniform Commercial Code did apply, KRS 355.2-309(2), (3) means merely that actual notice of the termination must be given. Written notice had been given. The court concluded that the additional requirement of “reasonable notification” was not necessary. The opinion next concluded that although there are no Kentucky cases directly on point, Peters Branch of International Shoe Company v. Jones, 247 Ky. 193, 56 S.W.2d 994 (1933), holds that in an exclusive franchise agreement where there was no agreement as to the duration of the contract, either party could terminate the agreement at will, and there was no mention of notice. Finally, the court concluded that if it required reasonable notification for termination of the agreement, it would be making a contract for the parties by stating a time for the duration of the contract.

We disagree with the conclusions of the trial court and hold that reasonable notification is required in order to terminate an on-going oral agreement for the sale of goods in a relationship of manufacturer-supplier and dealer-distributor or franchisee. The summary judgment must therefore be set aside and a determination must be made on the factual issue of whether or not the notification of termination given in this case was reasonable under the circumstances.

Appellant argues that this contract is now controlled by Article II of the Uniform Commercial Code. The opinion of the trial court provided only that, “It is the opinion of the court that the Uniform Commercial Code applies to the sale of goods and is not intended to apply to the type of situation we have in this case.” The rule for application of Article II in Kentucky was stated in Buttorff v. United Electronic Laboratories, Inc., Ky., 459 S.W.2d 581 (1970). According to the opinion in Buttorff, supra, we are to look to the real nature of the agreement, the real purpose, and what the parties really intended. It appears that the case sub judice can be distinguished from Buttorff, supra, on its facts. The relationship in But-torff, supra, was found to be a contract for personal services, not for the sale of goods or merchandise. Buttorff was actually a commissioned salesman for United Electronics Laboratories’ cameras and related equipment.

We must now consider the provisions of the Uniform Commercial Code in order to determine whether or not the article on sales is applicable to the situation at bar. This question has not yet been decided by a Kentucky court.

Article II of the Uniform Commercial Code applies to transactions involving goods and merchandise. “A contract between an automobile manufacturer and an automobile dealer is a contract of sale since it is apparent that its over all purpose and object is to effect the sale of the automobiles manufactured by the manufacturer, and the fact that it may speak in terms of franchises does not change its true character.” 1 Anderson, U.C.C. § 2-101:5, p. 201 (2nd ed.) “When a manufacturer sells its product to the public through a local dealer, the transaction is a sale, and the application of the Code is not avoided by describing the relationship as a ‘sales distribution’ plan.” Id., at 202. In relation to the same section of the Code, Anderson also cites a Pennsylvania case which held that, “A dealership *643contract for the sale of automobile parts is a contract for the sale of goods, even though the contract declares that it is a personal service contract.” Cum.Supp., Anderson, U.C.C., p. 174 (2nd ed.) Anderson also cites a California case holding that, “Where a supplier of milk agreed with a distributor that the latter would resell milk purchased from the supplier to wholesalers, the relationship between the supplier and the distributor was a sale of goods, and not a contract for services.” Id.

In the case at bar, we have a clear situation where the dealer-distributor was to sell the “goods” of the manufacturer-supplier. Appellant was not a commissioned salesman, and the agreement appears to be for the sale of goods.

We conclude that the time has come to recognize that a distributorship agreement must be recognized as an agreement for the sale of goods and subject to the provisions of Article II of the Uniform Commercial Code, which has been adopted by Kentucky in Chapter 355 of the Kentucky Revised Statutes. The amount of money being invested pursuant to distributorship agreements is ever increasing. Often there are no formal written agreements, and it may be that the manufacturer’s policy is to have no written agreements. By not establishing a length of time for the contract to exist, either party may terminate the relationship at will, but without a requirement for good faith and fair play, either party may be severely damaged. When sales are the primary essence of the distributorship agreement, the dealer is compelled to keep a large inventory on hand. If the distributorship is terminated without allowing the dealer sufficient time to sell his remaining inventory, substantial damages may result, even if the manufacturer agrees to repurchase the inventory. Reasonable notification should be the minimum amount of protection afforded to either party upon the termination of an ongoing sales agreement. When such reasonable notice is not given, a cause of action for damages may exist.

Having concluded that the Code is applicable to the relationship between the appellant and appellee, we must look at the specific requirements of KRS 355.2-309, “Absence of Specific Time Provisions — Notice of Termination.” Subsection (2) reads, “Where the contract provides for successive performances, but is indefinite in duration, it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.” Subsection (3) goes on to provide, “Termination of a contract by one (1) party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable.” There can be no doubt that reasonable notice is now required, whether or not prior Kentucky decisions, such as Peters Branch of International Shoe Company v. Jones, supra, which was relied upon by the trial court, held that notification was not required in an agreement which could be terminated at will. There is a real question of whether Jones, supra, actually reached a decision on the reasonable notice question, but we need not determine that point here. Today, in Kentucky, if the provisions of Article II of the Uniform Commercial Code apply to the relationship, reasonable notice of the intention to terminate the agreement must be given. In some cases, it would be required even if a written agreement provided for dispensing with notification. We therefore find additional error in the trial court’s opinion when it concluded that even if the provisions of the Code were applicable, only actual notice of termination would be required.

Comment 8 to § 2-309 in 1 Anderson, supra, at p. 445 reads:

Subsection (3) recognizes that the application of principles of good faith and sound commercial practice normally call for such notification of the termination of a going contract relationship as will give the other party reasonable time to seek a substitute arrangement. An agreement dispensing with notification, or limiting the time for the seeking of a substitute *644arrangement, is of course valid under this subsection unless the results of putting it into operation would be the creation of an unconscionable state of affairs.

It is also quite clear that the requirement of a reasonable notification does not relate to the method of giving notice, but to the circumstances under which the notice is given and the extent of advanced warning of termination that the notification gives.

Anderson, supra, in the cumulative supplement volume at p. 282, cites two Minnesota cases relating to the time which might be needed for recoupment of investment. McGinnis Piano and Organ Co. v. Yamaha International Corporation, 480 F.2d 474 (8th Cir. 1973) is cited for the proposition that “in some states, it is implied that a dealership contract which may be terminated upon notice must be allowed to continue for a sufficient period to enable the franchisee to recoup his investment.” The case of O. M. Droney Beverage Co. v. Miller Brewing Co., 365 F.Supp. 1067 (D.Minn.1973), is cited for the proposition that “under Minnesota law ‘a reasonable duration will be implied in franchise agreements where a dealer has made substantial investments in reliance on the agreement.’ ”

The distributorship agreement existing between appellant and appellee is one in which the essence was the sale of goods. Appellant was certainly not an employee or commissioned salesman of appellee. Appellant purchased the products of the appellee at wholesale prices, and marketed them in the Lexington area. The appellant does not dispute the fact that the agreement was terminable at will, but he contends, and the law so holds, that the appellee was required to give reasonable notification of intent to terminate the contract. What length of time constitutes reasonable notice is a question of material fact which remains to be decided. We cannot say that the written notice given in this case was “reasonable” as a matter of law.

The summary judgment granted by the trial court must therefore be vacated, and the case remanded for further proceedings.

All concur.

POSNER, Circuit Judge.

This appeal from a judgment for the plaintiff in a diversity suit requires us to interpret Indiana’s common law of contracts. General Motors, which is not a party to this case, hired Baystone Construction, Inc., the defendant, to build an addition to a Chevrolet plant in Muncie, Indiana. Bay-stone hired Morin Building Products Company, the plaintiff, to supply and erect the aluminum walls for the addition. The contract required that the exterior siding of the walls be of “aluminum type 3003, not less than 18 B & S gauge, with a mill finish and stucco embossed surface texture to match finish and texture of existing metal siding.” The contract also provided “that all work shall be done subject to the final approval of the Architect or Owner’s [General Motors’] authorized agent, and his decision in matters relating to artistic effect shall be final, if within the terms of the Contract Documents”; and that “should any dispute arise as to the quality or fitness of materials or workmanship, the decision as to acceptability shall rest strictly with the Owner, based on the requirement that all work done or materials furnished shall be first class in every respect. What is usual or customary in erecting other buildings shall in no wise enter into any consideration or decision.”

Morin put up the walls. But viewed in bright sunlight from an acute angle the exterior siding did not give the impression of having a uniform finish, and General Motors’ representative rejected it. Bay-stone removed Morin’s siding and hired another subcontractor to replace it. General Motors approved the replacement siding. Baystone refused to pay Morin the balance of the contract price ($23,000) and Morin brought this suit for the balance, and won.

The only issue on appeal is the correctness of a jury instruction which, after quoting the contractual provisions requiring that the owner (General Motors) be satisfied with the contractor’s (Morin’s) work, states: “Notwithstanding the apparent finality of the foregoing language, however, the general rule applying to satisfaction in the case of contracts for the construction of commercial buildings is that the satisfaction clause must be determined by objective criteria. Under this standard, the question is not whether the owner was satisfied in fact, but whether the owner, as • a reasonable person, should have been satisfied with the materials and workmanship in question.” There was much evidence that General Motors’ rejection of Morin’s exterior siding had been totally unreasonable. Not only was the lack of absolute uniformity in the finish of the walls a seemingly trivial defect given the strictly utilitarian purpose of the building that they enclosed, but it may have been inevitable; “mill finish sheet” is defined in the trade as “sheet having a nonuniform finish which may vary from sheet to sheet and within a sheet, and may not be entirely free from stains or oil.” If the instruction was correct, so was the judgment. But if the instruction was incorrect — if the proper standard is not whether a reasonable man would have been satisfied with Morin’s exterior siding but whether General Motors’ authorized representative in fact was — then there must be a new trial to determine whether he really was dissatisfied, or whether he was not and the rejection therefore was in bad faith.

Some cases hold that if the contract provides that the seller’s performance must be to the buyer’s satisfaction, his rejection— *415however unreasonable — of the seller’s performance is not a breach of the contract unless the rejection is in bad faith. See, e.g., Stone Mountain Properties, Ltd. v. Helmer, 139 Ga.App. 865, 869, 229 S.E.2d 779, 783 (1976). But most cases conform to the position stated in section 228 of the Restatement (Second) of Contracts (1979): if “it is practicable to determine whether a reasonable person in the position of the obligor would be satisfied, an interpretation is preferred under which the condition [that the obligor be satisfied with the obligee’s performance] occurs if such a reasonable person in the position of the obligor would be satisfied.” See Farnsworth, Contracts 556-59 (1982); Annot., 44 A.L.R.2d 1114, 1117, 1119-20 (1955). Indiana Tri-City Plaza Bowl, Inc. v. Estate of Glueck, 422 N.E.2d 670, 675 (Ind.App.1981), consistently with hints in earlier Indiana cases, see Andis v. Personett, 108 Ind. 202, 206, 9 N.E. 101, 103 (1886); Semon, Bache & Co. v. Coppes, Zook & Mutschler Co., 35 Ind.App. 351, 355, 74 N.E. 41, 43 (1905), adopts the majority position as the law of Indiana.

We do not understand the majority position to be paternalistic; and paternalism would be out of place in a case such as this, where the subcontractor is a substantial multistate enterprise. The requirement of reasonableness is read into a contract not to protect the weaker party but to approximate what the parties would have expressly provided with respect to a contingency that they did not foresee, if they had foreseen it. Therefore the requirement is not read into every contract, because it is not always a reliable guide to the parties’ intentions. In particular, the presumption that the performing party would not have wanted to put himself at the mercy of the paying party’s whim is overcome when the nature of the performance contracted for is such that there are no objective standards to guide the court. It cannot be assumed in such a case that the parties would have wanted a court to second-guess the buyer’s rejection. So “the reasonable person standard is employed when the contract involves commercial quality, operative fitness, or mechanical utility which other knowledgeable persons can judge .... The standard of good faith is employed when the contract involves personal aesthetics or fancy.” Indiana Tri-City Plaza Bowl, Inc. v. Estate of Glueck, supra, 422 N.E.2d at 675; see also Action Engineering v. Martin Marietta Aluminum, 670 F.2d 456, 460-61 (3d Cir.1982).

We have to decide which category the contract between Baystone and Morin belongs in. The particular in which Morin’s aluminum siding was found wanting was its •appearance, which may seem quintessentially a matter of “personal aesthetics,” or as the contract put it, “artistic effect.” But it is easy to imagine situations where this would not be so. Suppose the manager of a steel plant rejected a shipment of pig iron because he did not think the pigs had a pretty shape. The reasonable-man standard would be applied even if the contract had an “acceptability shall rest strictly with the Owner” clause, for it would be fantastic to think that the iron supplier would have subjected his contract rights to the whimsy of the buyer’s agent. At the other extreme would be a contract to paint a portrait, the buyer having reserved the right to reject the portrait if it did not satisfy him. Such a buyer wants a portrait that will please him rather than a jury, even a jury of connoisseurs, so the only question would be his good faith in rejecting the portrait. Gibson v. Cranage, 39 Mich. 49 (1878).

This case is closer to the first example than to the second. The building for which the aluminum siding was intended was a factory — not usually intended to be a thing of beauty. That aesthetic considerations were decidedly secondary to considerations of function and cost is suggested by the fact that the contract specified mill-finish aluminum, which is unpainted. There is much debate in the record over whether it is even possible to ensure a uniform finish within and among sheets, but it is at least clear that mill finish usually is not uniform. If General Motors and Baystone had wanted a uniform finish they would in all likelihood have ordered a painted siding. Whether Morin’s siding achieved a reasona*416ble uniformity amounting to satisfactory commercial quality was susceptible of objective judgment; in the language of the Restatement, a reasonableness standard was “practicable.”

But this means only that a requirement of reasonableness would be read into this contract if it contained a standard owner’s satisfaction clause, which it did not; and since the ultimate touchstone of decision must be the intent of the parties to the contract we must consider the actual language they used. The contract refers explicitly to “artistic effect,” a choice of words that may seem deliberately designed to put the contract in the “personal aesthetics” category whatever an outside observer might think. But the reference appears as number 17 in a list of conditions in a general purpose form contract. And the words “artistic effect" are immediately followed by the qualifying phrase, “if within the terms of the Contract Documents,” which suggests that the “artistic effect” clause is limited to contracts in which artistic effect is one of the things the buyer is aiming for; it is not clear that he was here. The other clause on which Baystone relies, relating to the quality or fitness of workmanship and materials, may seem all-encompassing, but it is qualified by the phrase, “based on the requirement that all work done or materials furnished shall be first class in every respect” — and it is not clear that Morin’s were not. This clause also was not drafted for this contract; it was incorporated by reference to another form contract (the Chevrolet Division’s “Contract General Conditions”), of which it is paragraph 35. We do not disparage form contracts, without which the commercial life of the nation would grind to a halt. But we are left with more than a suspicion that the artistic-effect and quality-fitness clauses in the form contract used here were not intended to cover the aesthetics of a mill-finish aluminum factory wall.

If we are right, Morin might prevail even under the minority position, which makes good faith the only standard but presupposes that the contract conditioned acceptance of performance on the buyer’s satisfaction in the particular respect in which he was dissatisfied. Maybe this contract was not intended to allow General Motors to reject the aluminum siding on the basis of artistic effect. It would not follow that the contract put Morin under no obligations whatsoever with regard to uniformity of finish. The contract expressly required it to use aluminum having “a mill finish ... to match finish ... of existing metal siding.” The jury was asked to decide whether a reasonable man would have found that Morin had used aluminum sufficiently uniform to satisfy the matching requirement. This was the right standard if, as we believe, the parties would have adopted it had they foreseen this dispute. It is unlikely that Morin intended to bind itself to a higher and perhaps unattainable standard of achieving whatever perfection of matching that General Motors’ agent insisted on, or that General Motors would have required Baystone to submit to such a standard. Because it is difficult — maybe impossible — to achieve a uniform finish with mill-finish aluminum, Morin would have been running a considerable risk of rejection if it had agreed to such a condition, and it therefore could have been expected to demand a compensating increase in the contract price. This would have required General Motors to pay a premium to obtain a freedom of action that it could not have thought terribly important, since its objective was not aesthetic. If a uniform finish was important to it, it could have gotten such a finish by specifying painted siding.

All this is conjecture; we do not know how important the aesthetics were to General Motors when the contract was signed or how difficult it really would have been to obtain the uniformity of finish it desired. The fact that General Motors accepted the replacement siding proves little, for there is evidence that the replacement siding produced the same striped effect, when viewed from an acute angle in bright sunlight, that Morin’s had. When in doubt on a difficult issue of state law it is only prudent to defer to the view of the district judge, Murphy v. *417 White Hen Pantry Go., 691 F.2d 350, 354 (7th Cir.1982), here an experienced Indiana lawyer who thought this the type of contract where the buyer cannot unreasonably withhold approval of the seller’s performance.

Lest this conclusion be thought to strike at the foundations of freedom of contract, we repeat that if it appeared from the language or circumstances of the contract that the parties really intended General Motors to have the right to reject Morin’s work for failure to satisfy the private aesthetic taste of General Motors’ representative, the rejection would have been proper even if unreasonable. But the contract is ambiguous because of the qualifications with which the terms “artistic effect” and “decision as to acceptability” are hedged about, and the circumstances suggest that the parties probably did not intend to subject Morin’s rights to aesthetic whim.

Affirmed.

Opinion

KLEIN, P. J.

Plaintiffs and appellants Sondra Locke (Locke) and Caritas Films, a California corporation (Caritas) (sometimes collectively referred to as Locke) appeal a judgment following a grant of summary judgment in favor of defendant and respondent Warner Bros., Inc. (Warner).

The essential issue presented is whether triable issues of material fact are present which would preclude summary judgment.

We conclude triable issues are present with respect to whether Warner breached its development deal with Locke by categorically refusing to work with her, and whether Warner fraudulently entered into said agreement without the intention to work with Locke. The judgment therefore is reversed as to the second and fourth causes of action and otherwise is affirmed.

Factual and Procedural Background

1. Locke’s dispute with Eastwood.

In 1975, Locke came to Warner to appear with Clint Eastwood in The Outlaw Josey Wales (Warner Bros. 1976). During the filming of the movie, Locke and Eastwood began a personal and romantic relationship. For *358the next dozen years, they lived in Eastwood’s Los Angeles and Northern California homes. Locke also appeared in a number of Eastwood’s films. In 1986, Locke made her directorial debut in Ratboy (Warner Bros. 1986).

In 1988, the relationship deteriorated, and in 1989 Eastwood terminated it. Locke then brought suit against Eastwood, alleging numerous causes of action. That action was resolved by a November 21, 1990, settlement agreement and mutual general release. Under said agreement, Eastwood agreed to pay Locke additional compensation in the sum of $450,000 “on account of past employment and Locke’s contentions” and to convey certain real property to her.

2. Locke’s development deal with Warner.

According to Locke, Eastwood secured a development deal for Locke with Warner in exchange for Locke’s dropping her case against him. Contemporaneously with the Locke/Eastwood settlement agreement, Locke entered into a written agreement with Warner, dated November 27, 1990. It is the Locke/Wamer agreement which is the subject of the instant controversy.

The Locke/Wamer agreement had two basic components. The first element states Locke would receive $250,000 per year for three years for a “non-exclusive first look deal.” It required Locke to submit to Warner any picture she was interested in developing before submitting it to any other studio. Warner then had 30 days either to approve or reject a submission.

The second element of the contract was a $750,000 “pay or play” directing deal. The provision is called “pay or play” because it gives the studio a choice: It can either “play” the director by using the director’s services, or pay the director his or her fee.

Unbeknownst to Locke at the time, Eastwood had agreed to reimburse Warner for the cost of her contract if she did not succeed in getting projects produced and developed. Early in the second year of the three-year contract, Warner charged $975,000 to an Eastwood film, Unforgiven (Warner Bros. 1992).

Warner paid Locke the guaranteed compensation of $1.5 million under the agreement. In accordance with the agreement, Warner also provided Locke with an office on the studio lot and an administrative assistant. However, Warner did not develop any of Locke’s proposed projects or hire her to direct any films. Locke contends the development deal was a sham, that Warner never intended to make any films with her, and that Warner’s sole *359motivation in entering into the agreement was to assist Eastwood in settling his litigation with Locke.

3. Locke’s action against Warner.

On March 10, 1994, Locke filed suit against Warner, alleging four causes of action.

The first cause of action alleged sex discrimination in violation of public policy. Locke alleged Warner denied her the benefit of the bargain of the development deal on account of her gender.

The third cause of action, captioned “Tortious Breach of the Implied Covenant of Good Faith and Fair Dealing in Violation of Public Policy,” alleged a similar claim. Locke pled that in denying her the benefits of the Wamer/Locke agreement, Warner was “motivated by [its] discriminatory bias against women in violation of . . . public policy.”1

The second cause of action alleged that Warner breached the contract by refusing to consider Locke’s proposed projects and thereby deprived her of the benefit of the bargain of the Wamer/Locke agreement.

Lastly, the fourth cause of action alleged fraud. Locke pled that at the time Warner entered into the agreement with her, it concealed and failed to disclose it had no intention of honoring the agreement.

Warner answered, denied each and every allegation and asserted various affirmative defenses.

4. Warner’s motion for summary judgment and opposition thereto.

On January 6, 1995, Warner filed a motion for summary judgment. Warner contended it did not breach its contract with Locke because it did consider all the projects she presented, and the studio’s decision not to put any of those projects into active development or “hand” Locke a script which it already owned was not a breach of any express or implied contractual duty. Warner asserted the odds are slim a producer can get a project into development and even slimmer a director will be hired to direct a film. During the term of Locke’s deal, Warner had similar deals with numerous other producers and directors, who fared no better than Locke.

*360As for Locke’s sex discrimination claims, Warner averred there was no evidence it ignored Locke’s projects or otherwise discriminated against her on account of her gender. Finally, Warner urged the fraud claim was meritless because Locke had no evidence that when Warner signed the contract, it did not intend to honor the deal, and moreover, Warner had fulfilled its contractual obligations to Locke.

In opposing summary judgment, Locke contended Warner breached the agreement in that it had no intention of accepting any project regardless of its merits. Locke also asserted Warner committed fraud by entering into the agreement without any intention of approving any project with Locke or allowing Locke to direct another film.

Locke’s opposition papers cited the deposition testimony of Joseph Terry, who recounted a conversation he had with Bob Brassel, a Warner executive, regarding Locke’s projects. Terry had stated to Brassel: “ ‘Well, Bob, this woman has a deal on the lot. She’s a director that you want to work with. You have a deal with her. . . . I’ve got five here that she’s interested in.’ [H And then I would get nothing. HD ... 0D I was told [by Brassel], ‘Joe, we’re not going to work with her,’ and then, ‘That’s Clint’s deal.’ And that’s something I just completely did not understand.”

Similarly, the declaration of Mary Wellnitz stated: She worked with Locke to set up projects at Warner, without success. Shortly after she began her association with Locke, Wellnitz submitted a script to Lance Young, who at the time was a senior vice-president of production at Warner. After discussing the script, Young told Wellnitz, “Mary, I want you to know that I think Sondra is a wonderful woman and very talented, but, if you think I can go down the hall and tell Bob Daly that I have a movie I want to make with her he would tell me to forget it. They are not going to make a movie with her here.”

5. Trial court’s ruling.

On February 17, 1995, the trial court granted summary judgment in favor of Warner. Thereafter, the trial court signed an extensive order granting summary judgment. The order stated:

“Under the contract, Warner had no obligation either to put into development any of the projects submitted to the studio for its consideration, or to ‘hand off’ to Locke any scripts for her to direct that it previously had acquired from someone else. The implied covenant of good faith and fair dealing cannot be imposed to create a contract different from the one the *361parties negotiated for themselves. Warner had the option to pass on each project Locke submitted. Warner was not required to have a ‘good faith’ or ‘fair’ basis for declining to exercise its right to develop her material. Such a requirement would be improper and unworkable. A judge or jury cannot and should not substitute its judgment for a film studio’s when the studio is making the creative decision of whether to develop or produce a proposed motion picture. Such highly subjective artistic and business decisions are not proper subjects for judicial review. Moreover, Warner had legitimate commercial and artistic reasons for declining to develop the projects Locke submitted.”

With respect to Locke’s claim she was defrauded by Warner when it entered into the agreement with the undisclosed intention not to honor its contractual obligations, the trial court ruled that because Warner did not breach its contractual obligations to Locke, the fraud claim was meritless. Also, it could not be inferred from the statements by Young and Brassel that two years earlier, when Warner entered into agreement, it had no intention of working with Locke.

As for the two causes of action alleging sex discrimination, the trial court found no evidence Warner declined to develop the projects Locke submitted, and declined to use her directing services, on account of her gender.

Locke filed a timely notice of appeal from the judgment.

Contentions

Locke contends: The trial court erred by granting Warner’s motion for summary judgment based on its conclusion there were no disputed issues of material fact; the trial court erred in weighing the evidence, resolving doubts against Locke, the nonmoving party, and adopting only those inferences favorable to Warner where the evidence supported contrary inferences; and the trial court committed reversible error first by failing to make any findings or evidentiary rulings and then by adopting Warner’s defective ruling.

Discussion

1. Standard of appellate review.

As we recently stated in PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590 [52 Cal.Rptr.2d 877], summary judgment “motions are to expedite litigation and eliminate needless trials. [Citation.] *362They are granted ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ [Citations.]”

A defendant meets its burden upon such a motion if it negates an essential element of the plaintiff’s cause of action, or establishes a complete defense, or if it demonstrates the absence of evidence to support the plaintiff’s case. Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists. (PMC, Inc. v. Saban Entertainment, Inc., supra, 45 Cal.App.4th at p. 590; Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482 [50 Cal.Rptr.2d 785].)

On appeal, “we exercise ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court . . . .’ [Citations.] ‘[W]e construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’ [Citations.]” (PMC, Inc., v. Saban Entertainment, Inc., supra, 45 Cal.App.4th at p. 590.)

Our review is guided by the foregoing principles.2

2. A triable issue exists as to whether Warner breached its contract with Locke by failing to evaluate Locke’s proposals on their merits.

As indicated, the second cause of action alleged Warner breached the contract by “refusing to consider the projects prepared by [Locke] and *363depriving [Locke] of the benefit of the bargain of the Wamer-Locke agreement.”3

In granting summary judgment on this claim, the trial court ruled “[a] judge or jury cannot and should not substitute its own judgment for a film studio’s when the studio is making the creative decision of whether to develop or produce a proposed motion picture. Such highly-subjective artistic and business decisions are not proper subjects for judicial review.”

The trial court’s ruling missed the mark by failing to distinguish between Warner’s right to make a subjective creative decision, which is not reviewable for reasonableness, and the requirement the dissatisfaction be bona fide or genuine.

a. General principles.

“‘[W]here a contract confers on one party a discretionary power affecting the rights of the other, a duty is imposed to exercise that discretion in good faith and in accordance with fair dealing.’ [Citations.]” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 923 [216 Cal.Rptr. 345, 702 P.2d 503]; accord, Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 500 [220 Cal.Rptr. 818, 709 P.2d 837].) It is settled that in “ ‘every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. . . .’” (Kendall, supra, at p. 500; accord, Waller, v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 36.)

Therefore, when it is a condition of an obligor’s duty that he or she be subjectively satisfied with respect to the obligee’s performance, the subjective standard of honest satisfaction is applicable. (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 729, p. 659; Rest.2d Contracts, § 228, corns, a, b, pp. 182-183.) “Where the contract involves matters of fancy, taste or judgment, the promisor is the sole judge of his satisfaction. If he asserts in good faith that he is not satisfied, there can be no inquiry into the reasonableness of his attitude. [Citations.] [tJ0 Traditional examples are employment contracts . . . and agreements to paint a portrait, write a literary or *364scientific article, or produce a play or vaudeville act. [Citations.]” (1 Witkin, Summary of Cal. Law, supra, § 730, p. 660; accord, Schuyler v. Pantages (1921) 54 Cal.App. 83, 85-87 [201 P. 137].) In such cases, “the promisor’s determination that he is not satisfied, when made in good faith, has been held to be a defense to an action on the contract. [Citations.]” (Mattei v. Hopper (1958) 51 Cal.2d 119, 123 [330 P.2d 625], italics added.)

Therefore, the trial court erred in deferring entirely to what it characterized as Warner’s “creative decision” in the handling of the development deal. If Warner acted in bad faith by categorically rejecting Locke’s work and refusing to work with her, irrespective of the merits of her proposals, such conduct is not beyond the reach of the law.

b. Locke presented evidence from which a trier of fact reasonably could infer Warner breached the agreement by refusing to consider her proposals in good faith.

Merely because Warner paid Locke the guaranteed compensation under the agreement does not establish Warner fulfilled its contractual obligation. As pointed out by Locke, the value in the subject development deal was not merely the guaranteed payments under the agreement, but also the opportunity to direct and produce films and earn additional sums, and most importantly, the opportunity to promote and enhance a career.

Unquestionably, Warner was entitled to reject Locke’s work based on its subjective judgment, and its creative decision in that regard is not subject to being second-guessed by a court. However, bearing in mind the requirement that subjective dissatisfaction must be an honestly held dissatisfaction, the evidence raises a triable issue as to whether Warner breached its agreement with Locke by not considering her proposals on their merits.

As indicated, the deposition testimony of Joseph Terry recounted a conversation he had with Bob Brassel, a Warner executive, regarding Locke’s projects. In that conversation, Brassel stated “ ‘Joe, we’re not going to work with her,’ and then, ‘That’s Clint’s deal.’ ”

Similarly, the declaration of Mary Wellnitz recalled a conversation she had with Lance Young, a senior vice-president of production at Warner. After discussing the script with Wellnitz, Young told her: “Mary, I want you to know that I think Sondra is a wonderful woman and very talented, but, if *365you think I can go down the hall and tell Bob Daly that I have a movie I want to make with her he would tell me to forget it. They are not going to make a movie with her here.”

The above evidence raises a triable issue of material fact as to whether Warner breached its contract with Locke by categorically refusing to work with her, irrespective of the merits of her proposals. While Warner was entitled to reject Locke’s proposals based on its subjective dissatisfaction, the evidence calls into question whether Warner had an honest or good faith dissatisfaction with Locke’s proposals, or whether it merely went through the motions of purporting to “consider” her projects.

c. No merit to Warner’s contention Locke seeks to rewrite the instant agreement to limit Warner’s discretionary power.

Warner argues that while the implied covenant of good faith and fair dealing is implied in all contracts, it is limited to assuring compliance with the express terms of the contract and cannot be extended to create obligations not contemplated in the contract. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1032 [14 Cal.Rptr.2d 335].)

This principle is illustrated in Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 351-352 [6 Cal.Rptr.2d 467, 826 P.2d 710], wherein the parties entered into a lease agreement which stated that if the tenant procured a potential sublessee and asked the landlord for consent to sublease, the landlord had the right to terminate the lease, enter into negotiations with the prospective sublessee, and appropriate for itself all profits from the new arrangement. Carma recognized “[tjhe covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another.” (Id., at p. 372.) The court expressed the view that “[s]uch power must be exercised in good faith.” (Ibid.) At the same time, Corma upheld the right of the landlord under the express terms of the lease to freely exercise its discretion to terminate the lease in order to claim for itself—and deprive the tenant of—the appreciated rental value of the premises. (Id., at p. 376.)

In this regard, Carma stated: “We are aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement. On the contrary, as a general matter, implied terms should never be read to vary

*366express terms. [Citations.] ‘The general rule [regarding the covenant of good faith] is plainly subject to the exception that the parties may, by express provisions of the contract, grant the right to engage in the very acts and conduct which would otherwise have been forbidden by an implied covenant of good faith and fair dealing. ...['][] This is in accord with the general principle that, in interpreting a contract “an implication . . . should not be made when the contrary is indicated in clear and express words.” 3 Corbin, Contracts, § 564, p. 298 (1960). . . . [*][] Ai to acts and conduct authorized by the express provisions of the contract, no covenant of good faith and fair dealing can be implied which forbids such acts and conduct. And if defendants were given the right to do what they did by the express provisions of the contract there can be no breach.’ [Citation.]” (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc., supra, 2 Cal.4th at p. 374, italics added.)

In Third Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798, 801 [48 Cal.Rptr.2d 747], the issue presented was “whether a promise to market music, or to refrain from doing so, at the election of the promisor is subject to the implied covenant of good faith and fair dealing where substantial consideration has been paid by the promisor.”

In that case, Warner Communications obtained from Third Story Music (TSM) the worldwide right to manufacture, sell, distribute and advertise the musical output of singer/songwriter Tom Waits. (Third Story Music, Inc. v. Waits, supra, 41 Cal.App.4th at pp. 800-801.) The agreement also specifically stated that Warner Communications “ ‘may at our election refrain from any or all of the foregoing.’ ” (Id., at p. 801.) TSM sued Warner Communications for contract damages based on breach of the implied covenant of good faith and fair dealing, claiming Warner Communications had impeded TSM’s receiving the benefit of the agreement. (Id., at p. 802.) Warner Communications demurred to the complaint, alleging the clause in the agreement permitting it to “ ‘at [its] election refrain’ from doing anything to profitably exploit the music is controlling and precludes application of any implied covenant.” (Ibid.) The demurrer was sustained on those grounds. (Ibid.)

The reviewing court affirmed, holding the implied covenant was unavailing to the plaintiff. (Third Story Music, Inc. v. Waits, supra, 41 Cal.App.4th at pp. 808-809.) Because the agreement expressly provided Warner Communications had the right to refrain from marketing the Waits recordings, the implied covenant of good faith and fair dealing did not limit the discretion given to Warner Communications in that regard. (Ibid.; Carma Developers *367 (Cal.), Inc. v. Marathon Development California, Inc., supra, 2 Cal.4th at p. 374.)

Warner’s reliance herein on Third Story Music, Inc., is misplaced. The Locke/Wamer agreement did not give Warner the express right to refrain from working with Locke. Rather, the agreement gave Warner discretion with respect to developing Locke’s projects. The implied covenant of good faith and fair dealing obligated Warner to exercise that discretion honestly and in good faith.

In sum, the Wamer/Locke agreement contained an implied covenant of good faith and fair dealing, that neither party would frustrate the other party’s right to receive the benefits of the contract. (Comunale v. Traders & General Ins. Co., supra, 50 Cal.2d at p. 658; Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 36.) Whether Warner violated the implied covenant and breached the contract by categorically refusing to work with Locke is a question for the trier of fact.

3. A triable issue exists as to whether Warner made a fraudulent promise.

In the fourth cause of action, Locke pled at the time Warner entered into the agreement with her, it concealed and failed to disclose it had no intention of honoring the agreement.4

The trial court held that because Warner did not breach any express or implied obligations owed to Locke, she could not prevail on the fraud claim. However, as explained above, a triable issue exists as to whether Warner breached the agreement with Locke. Therefore, the trial court’s rationale for disposing of the fraud claim is undermined.

The trial court also ruled Locke could not prevail on the fraud claim because there was no evidence Warner had a fraudulent intent at the time the parties entered into the contract. The trial court acknowledged Locke “filed a declaration of her development assistant, Mary Wellnitz, in which Ms. *368Wellnitz states that a Warner Bros, executive, Lance Young, remarked in late 1992 that Warner Bros, was ‘not going to make a movie’ with Ms. Locke. [Locke] also offered the deposition testimony of a third party, Joe Terry, in which he recalled a 1993 conversation with another Warner Bros, production executive, Bob Brassel, in which Mr. Brassel said that the studio was not going to work with Ms. Locke. However, the Court does not believe that these statements would permit a jury to infer that two years earlier, when plaintiffs and the defendant entered into their contract, Warner Bros, intended to breach its obligations.”

We disagree. Fraudulent intent must often be established by circumstantial evidence, and may be “inferred from such circumstances as defendant’s . . . failure even to attempt performance, . . .” (Tenzer v. Superscope, Inc., supra, 39 Cal.3d at p. 30.) Based on the above evidence that Warner had expressed an absolute unwillingness to work with Locke, a trier of fact reasonably could infer Warner never intended to give Locke’s proposals a good faith evaluation and that Warner entered into the agreement with Locke solely as an accommodation to Eastwood, who had promised to reimburse Warner for any losses under the agreement. The trial court erred in concluding such an inference could not be drawn from the evidence. We conclude the issue of fraudulent intent is one for the trier of fact.

4. Locke waived any error in the trial court’s ruling with respect to her causes of action alleging gender bias.

Locke’s opening brief does not assert any error in the trial court’s disposition of her two causes of action alleging sex discrimination. Accordingly, this court may treat the claims as having been waived.

Belatedly, Locke’s reply brief contends she presented evidence which raised the inference she was discriminated against because of her gender. “Ordinarily, [appellants’] failure to raise an issue in their opening brief waives the issue on appeal. [Citation.]” (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361 [282 Cal.Rptr. 330]; accord, 1119 Delaware v. Continental Land Title Co. (1993) 16 Cal.App.4th 992,1004 [20 Cal.Rptr.2d 438]; Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc. (1995) 31 Cal.App.4th 1323, 1333 [37 Cal.Rptr.2d 552].) Locke has not shown good cause for the untimely contention. Therefore, we disregard Locke’s argument the trial court erred in granting summary judgment on the first and third causes of action.

*3695. Remaining issues not reached.

Because we find triable issues are present with respect to the second and fourth causes of action, it is unnecessary to address Locke’s remaining contentions.

Disposition

The judgment is reversed with respect to the second and fourth causes of action and is otherwise affirmed. Locke to recover costs on appeal.

Kitching, J., and Aldrich, J., concurred.

A petition for a rehearing was denied September 24, 1997, and respondent’s petition for review by the Supreme court was denied November 19, 1997.

JUSTICE KEENAN

delivered the opinion of the Court.

In this appeal, the dispositive issue is whether there was sufficient evidence to support the trial court’s ruling that the manufacturer of a sport fishing boat breached an express warranty and implied warranties of merchantability and fitness for a particular purpose.

In the summer of 1989, John R. Crow was invited by John Atherton, then a sales representative for Tidewater Yacht Agency, Inc. (Tidewater), to ride on a new model sport fishing boat known as a 3486 Trophy Convertible, manufactured by Bayliner Marine Corporation (Bayliner). At that time, Tidewater was the exclusive authorized dealer in southeastern Virginia for this model Bayliner boat. During an excursion lasting about 20 minutes, Crow piloted the boat for a short period of time but was not able to determine its speed because there was no equipment on board for such testing.

When Crow asked Atherton about the maximum speed of the boat, Atherton explained that he had no personal experience with the boat or information from other customers concerning the boat’s performance. Therefore, Atherton consulted two documents described as “prop matrixes,” which were included by Bayliner in its dealer’s manual.

Atherton gave Crow copies of the “prop matrixes,” which listed the boat models offered by Bayliner and stated the recommended propeller sizes, gear ratios, and engine sizes for each model. The “prop matrixes” also listed the maximum speed for each model. The 3486 Trophy Convertible was listed as having a maximum speed of 30 miles per hour when equipped with a size “20x20” or “2019” propeller. The boat Crow purchased did not have either size propeller but, instead, had a size “20x17” propeller.

At the bottom of one of the “prop matrixes” was the following disclaimer: “This data is intended for comparative purposes only, and is available without reference to weather conditions or other variables. All testing was done at or near sea level, with full fuel and water tanks, and approximately 600 lb. passenger and gear weight.”

Atherton also showed Crow a Bayliner brochure describing the 1989 boat models, including the 3486 Trophy Convertible. The brochure included a picture of that model fully rigged for offshore fish*125ing, accompanied by the statement that this model “delivers the kind of performance you need to get to the prime offshore fishing grounds.”

In August 1989, Crow entered into a written contract for the purchase of the 3486 Trophy Convertible in which he had ridden. The purchase price was $120,000, exclusive of taxes. The purchase price included various equipment to be installed by Tidewater including a generator, a cockpit cover, a “Bimini top,” a winch, a spotlight, radar, a navigation system, an icemaker, fishing outriggers, an automatic pilot system, extra fuel gauges, a second radio, and air conditioning and heating units. The total weight of the added equipment was about 2,000 pounds. Crow did not test drive the boat after the additional equipment was installed or at any other time prior to taking delivery.

When Crow took delivery of the boat in September 1989, he piloted it onto the Elizabeth River. He noticed that the boat’s speed measuring equipment, which was installed in accordance with the contract terms, indicated that the boat’s maximum speed was 13 miles per hour. Crow immediately returned to Tidewater and reported the problem.

During the next 12 to 14 months, while Crow retained ownership and possession of the boat, Tidewater made numerous repairs and adjustments to the boat in an attempt to increase its speed capability. Despite these efforts, the boat consistently achieved a maximum speed of only 17 miles per hour, except for one period following an engine modification when it temporarily reached a speed of about 24 miles per hour. In July 1990, a representative from Bayliner wrote Crow a letter stating that the performance representations made at the time of purchase were incorrect, and that 23 to 25 miles per hour was the maximum speed the boat could achieve.

In 1992, Crow filed a motion for judgment against Tidewater, Bayliner, and Brunswick Corporation, the manufacturer of the boat’s diesel engines.1 Crow alleged, among other things, that Bayliner breached express warranties, and implied warranties of merchantability and fitness for a particular purpose.

At a bench trial in 1994, Crow, Atherton, and Gordon W. Shelton, III, Tidewater’s owner, testified that speed is a critical quality in boats used for offshore sport fishing in the Tidewater area of *126Virginia because of the distance between the coast and the offshore fishing grounds. According to these witnesses, a typical offshore fishing site in that area is 90 miles from the coast. Therefore, the speed at which the boat can travel to and from fishing sites has a major impact on the amount of time left in a day for fishing.

Crow testified that because of the boat’s slow speed, he could not use the boat for offshore fishing, that he had no other use for it, and that he would not have purchased the boat if he had known that its maximum speed was 23 to 25 miles per hour. Crow testified that he had not used the boat for fishing since 1991 or 1992. He admitted, however, that between September 1989, and September 1994, the boat’s engines had registered about 850 hours of use. Bob Schey, Bayliner’s manager of yacht testing, testified that a pleasure boat in a climate such as Virginia’s typically would register 150 engine hours per year.

The trial court entered judgment in favor of Crow against Bayliner on the counts of breach of express warranty and breach of implied warranties of merchantability and fitness for a particular purpose. The court awarded Crow damages of $135,000, plus prejudgment interest from June 1993. The court explained that the $135,000 award represented the purchase price of the boat, and about $15,000 in “damages” for a portion of the expenses Crow claimed in storing, maintaining, insuring, and financing the boat.

On appeal, we review the evidence in the light most favorable to Crow, the prevailing party at trial. Tuomala v. Regent University, 252 Va. 368, 375, 477 S.E.2d 501, 505 (1996); W.S. Carnes, Inc. v. Chesterfield County, 252 Va. 377, 385, 478 S.E.2d 295, 301 (1996). We will uphold the trial court’s judgment unless it is plainly wrong or without evidence to support it.2 Code § 8.01-680; Horton v. Horton, 254 Va. 111, 115, 487 S.E.2d 200, 203 (1997).

Crow argues that the “prop matrixes” he received created an express warranty by Bayliner that the boat he purchased was capable of a maximum speed of 30 miles per hour. We disagree.

Code § 8.2-313 provides, in relevant part:

Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the *127basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

(b) Any description of the goods which is made a part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

The issue whether a particular affirmation of fact made by the seller constitutes an express warranty is generally a question of fact. See id., Official Comment 3; Daughtrey v. Ashe, 243 Va. 73, 78, 413 S.E.2d 336, 339 (1992). In Daughtrey, we examined whether a jeweler’s statement on an appraisal form constituted an express warranty. We held that the jeweler’s description of the particular diamonds being purchased as “v.v.s. quality” constituted an express warranty that the diamonds were, in fact, of that grade. Id. at 77, 413 S.E.2d at 338.

Unlike the representation in Daughtrey, however, the statements in the “prop matrixes” provided by Bayliner did not relate to the particular boat purchased by Crow, or to one having substantially similar characteristics. By their plain terms, the figures stated in the “prop matrixes” referred to a boat with different sized propellers that carried equipment weighing substantially less than the equipment on Crow’s boat. Therefore, we conclude that the statements contained in the “prop matrixes” did not constitute an express warranty by Bayliner about the performance capabilities of the particular boat purchased by Crow.

Crow also contends that Bayliner made an express warranty regarding the boat’s maximum speed in the statement in Bayliner’s sales brochure that this model boat “delivers the kind of performance you need to get to the prime offshore fishing grounds.” While the general rule is that a description of the goods that forms a basis of the bargain constitutes an express warranty, Code § 8.2-313(2) directs that “a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

The statement made by Bayliner in its sales brochure is merely a commendation of the boat’s performance and does not describe a specific characteristic or feature of the boat. The statement simply expressed the manufacturer’s opinion concerning the quality of the boat’s performance and did not create an express warranty that the boat was capable of attaining a speed of 30 miles per hour. Therefore, we conclude that the evidence does not support the trial *128court’s finding that Bayliner breached an express warranty made to Crow.

We next consider whether the evidence supports the trial court’s conclusion that Bayliner breached an implied warranty of merchantability. Crow asserts that because his boat was not capable of achieving a maximum speed of 30 miles per hour, it was not fit for its ordinary purpose as an offshore sport fishing boat. Bayliner contends in response that, although the boat did not meet the needs of this particular sport fisherman, there was no evidence from which the trial court could conclude that the boat generally was not merchantable as an offshore fishing boat. We agree with Bayliner’s argument.

Code § 8.2-314 provides that, in all contracts for the sale of goods by a merchant, a warranty is implied that the goods will be merchantable. To be merchantable, the goods must be such as would “pass without objection in the trade” and as “are fit for the ordinary purposes for which such goods are used.” Code § 8.2-314(2)(a),(c). The first phrase concerns whether a “significant segment of the buying public” would object to buying the goods, while the second phrase concerns whether the goods are “reasonably capable of performing their ordinary functions.” Federal Signal Corp. v. Safety Factors, Inc., 886 P.2d 172, 180 (Wash. 1994). In order to prove that a product is not merchantable, the complaining party must first establish the standard of merchantability in the trade. Laird v. Scribner Coop, Inc., 466 N.W.2d 798, 804 (Neb. 1991). Bayliner correctly notes that the record contains no evidence of the standard of merchantability in the offshore fishing boat trade. Nor does the record contain any evidence supporting a conclusion that a significant portion of the boat-buying public would object to purchasing an offshore fishing boat with the speed capability of the 3486 Trophy Convertible.

Crow, nevertheless, relies on his own testimony that the boat’s speed was inadequate for his intended use, and Atherton’s opinion testimony that the boat took “a long time” to reach certain fishing grounds in the Gulf Stream off the coast of Virginia. However, this evidence did not address the standard of merchantability in the trade or whether Crow’s boat failed to meet that standard. Thus, we hold that Crow failed to prove that the boat would not “pass without objection in the trade” as required by Code § 8.2-314(2)(a).

We next consider whether the record supports a conclusion that Crow’s boat was not fit for its ordinary purpose as an offshore sport fishing boat. Generally, the issue whether goods are fit for the *129ordinary purposes for which they are used is a factual question. See Federal Ins. Co. v. Village of Westmont, 649 N.E.2d 986, 990 (App. Ct. Ill. 1995); Tallmadge v. Aurora Chrysler Plymouth, Inc., 605 P.2d 1275, 1278 (Wash. Ct. App. 1979). Here, the evidence is uncontroverted that Crow used the boat for offshore fishing, at least during the first few years after purchasing it, and that the boat’s engines were used for 850 hours. While Crow stated that many of those hours were incurred during various repair or modification attempts and that the boat was of little value to him, this testimony does not support a conclusion that a boat with this speed capability is generally unacceptable as an offshore fishing boat. Thus, considered in the light most favorable to Crow, the evidence fails to establish that the boat was not fit for the ordinary purpose for which it was intended.

We next address Crow’s claim that Bayliner breached an implied warranty of fitness for a particular purpose. Code § 8.2-315 provides that when a seller “has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is ... an implied warranty that the goods shall be fit for such purpose.” See also Medcom, Inc. v. C. Arthur Weaver Co., Inc., 232 Va. 80, 84-85, 348 S.E.2d 243, 246 (1986). This statute embodies a long-standing common law rule in Virginia. Layne-Atlantic Co. v. Koppers Co., 214 Va. 467, 471, 201 S.E.2d 609, 613 (1974). The question whether there was an implied warranty of fitness for a particular purpose in a sale of goods is ordinarily a question of fact based on the circumstances surrounding the transaction. Stones v. Sears, Roebuck & Co., 558 N.W.2d 540, 547 (Neb. 1997).

Crow contends that the “particular purpose” for which the boat was intended was use as an offshore fishing boat capable of traveling at a maximum speed of 30 miles per hour. However, to establish an implied warranty of fitness for a particular purpose, the buyer must prove as a threshold matter that he made known to the seller the particular purpose for which the goods were required. See Medcom, 232 Va. at 84, 348 S.E.2d at 246. The record before us does not support a conclusion that Crow informed Atherton of this precise requirement. Although Crow informed Atherton that he intended to use the boat for offshore fishing and discussed the boat’s speed in this context, these facts did not establish that Atherton knew on the date of sale that a boat incapable of travelling at 30 miles per hour was unacceptable to Crow. Thus, we conclude that the evidence *130fails to support the trial court’s ruling that Bayliner breached an implied warranty of fitness for a particular purpose.

For these reasons, we will reverse the trial court’s judgment and enter final judgment in favor of Bayliner.

Reversed and final judgment.