Disclaimer of Warranties

Disclaimers of Warranties (Section 316 of the Uniform Commercial Code).

Express Warranty

Express warranties are inoperative if the disclaimer cannot be construed as “consistent” with terms in the contract that would create the express warranty. You should the parol evidence to bar any express warranties that were created outside the document:

  • If it is an integrated agreement, then no warranties outside of the agreement are actually enforceable (parol evidence)
  • If it is not an integrated agreement, Apply Article 2, 316:
    • A disclaimer is only ineffective if it conflicts with the warranty
    • Therefore, you can have a disclaimer that limits the warranty but does not conflict it

Implied warranty of merchantability

Can also be disclaimed; however, the disclaimer  has to mention merchantability. Furthermore, if it is in writing, the disclaimer has to be conspicuous (the disclaimer can be oral). In order to disclaim the implied warranty of mechantability, the disclaimer:

  • Cannot just state “all warranties are disclaimed”
  • Does not have to be in writing but must mention warranty of merchantability

Implied warranty of fitness for a particular purpose

Can also be disclaimed; but, the disclaimer must be in writing and must be conspicuous. The written disclaimer does not have to mention fitness. This implied warranty does not require a conspicuousness requirement, but most courts agree that one should be implied to carry out the section’s purpose of avoiding surprise to buyers.

Finally, it is important to note that an “As is” magically disclaims all warranties.

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