Disclaimer of warranties
Disclaimer of warranties the products are sold as is, where is and Seller expressly disclaims all other warranties, express or implied, including warranties of title or infringement, and any implied warranties of merchantability or fitness for a particular purpose. Buyer is purchasing the Products with full assumption of the risks associated with this disclaimer, and the purchase price has been negotiated to reflect this assumption of risk[1].
A warranty disclaimer is an oral or written statement indicating that the seller is not bound by any warranty guarantees regarding the product sold. Because each type of warranty is created in a different way, the number in which each one can be disclaimed or limited by the seller varies[2].
Types of warranty disclaimer
To explore the disclaimer of warranties under the Code, we will look at the following[3][4]:
- Disclaimer of Title Warranty in an ordinary sales transaction, the title warranty can be disclaimed or modified only be specific language in a contract. Example: Craft Tool Corporation sells metalworking tools to Dunlap Milling Company. Among the warranties and disclaimers that accompany the goods, Craft Toll asserts that it is transferring only the rights, title, and interest that is has in the goods.
- Disclaimer of Express Warranties a seller or lessor can disclaim all oral express warranties by including a written disclaimer in the contract. The disclaimer must be in language that is clear and conspicuous, grabbing a buyer's or lessee's attention. For instance, the disclaimer might be printed in a different color, front or size from the rest of the contract. The buyer or lessee must be made ware of any warranty disclaimers or modifications at the time the contract is formed.
- Disclaimer of Implied Warranties generally, the implied warranties of merchantability and fitness are disclaimed by an expression such as as is and with all faults. Both parties must understand that the expression is intended to call the buyer's attention to the fact that there are no implied warranties.
To disclaim the implied warranty of fitness, the disclaimer must be in writing and be conspicuous. The world fitness does not have to be mentioned. It is sufficient if the disclaimer states, There are no warranties that extend beyond the description on the face hereof. A merchantability disclaimer must mention the word merchantability. A merchantability disclaimer does not have to be in writing. If it is, however, the writing must be conspicuous.
Warranties on the Web
Most firms conducting electronic commerce have little trouble fulfilling the requirements needed to create enforceable, legally binding contracts on the Web. One area that deserves attention, however, is the issue of warranties. Any contract for the sale of goods includes implied warranties. A seller implicitly warrants that the goods it offers for sale are fit for the purposes for which they are normally used. If the seller knows specific information about the buyer's requirements, acceptance of an offer from that buyer may result in an additional implied warranty of fitness, which suggests that the goods are suitable for the specific uses of that buyer. Sellers can also create explicit warranties by providing a specific description of the additional warranty terms. It is also possible for a seller to create explicit warranties, often unintentionally, by making general statements in brochures or other advertising materials about product performance or suitability for particular tasks[5].
Examples of Disclaimer of warranties
Example 1:
- Seller hereby disclaims all warranties, representations, and conditions, whether express or implied, including warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
Example 2:
- Seller expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
Example 3:
- Seller hereby disclaims all warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Seller makes no representation or warranty that the Products will meet Buyer’s expectations or requirements. Buyer assumes all risk with respect to the use of the Products.
Advantages of Disclaimer of warranties
A disclaimer of warranties is an important part of any contract, as it helps to protect both the buyer and seller in the event of any defects or issues with the goods being sold. By agreeing to this disclaimer, both parties acknowledge that they are aware of the risks associated with the purchase and that the purchase price has been adjusted accordingly. The advantages of a disclaimer of warranties include:
- Clarity: Disclaimers of warranties helps to clarify the responsibilities of both parties in the event of any issues with the goods, ensuring that each party is aware of the risks associated with the purchase.
- Protection: Disclaimers of warranties help to protect both the seller and buyer from potential legal issues that could arise from any defects or issues with the goods being sold.
- Cost Savings: By agreeing to a disclaimer of warranties, buyers may be able to negotiate a lower purchase price, as the seller is able to mitigate some of the risks associated with the sale.
Limitations of Disclaimer of warranties
This Disclaimer of Warranties does not affect statutory rights of the buyer that cannot be excluded, nor does it affect any warranties provided in the contract between the Seller and the Buyer. The limitations of the Disclaimer of Warranties are as follows:
- This disclaimer does not affect any warranties that are implied by law and cannot be excluded.
- This disclaimer does not affect any warranties that are provided in the contract between the Seller and the Buyer.
- This disclaimer does not affect any warranties for fitness for a particular purpose.
- This disclaimer does not affect any warranties or guarantees for title or infringement.
- This disclaimer does not affect any warranties of merchantability.
- This disclaimer does not affect any warranties of quality, durability or performance.
- This disclaimer does not affect any liability of the Seller for personal injury or death resulting from negligent acts or omissions of the Seller or its employees.
Introduction: Here are some other approaches related to disclaimers of warranties:
- Limiting warranties: This approach involves limiting the scope of the warranties given to the buyer, particularly in terms of the duration of the warranty and the types of defects covered.
- Express warranties: This approach involves explicitly stating what warranties are being provided to the buyer, such as a warranty of merchantability or a warranty of fitness for a particular purpose.
- Implied warranties: This approach involves making implied warranties to the buyer, such as warranties of title and non-infringement.
- Exclusion of warranties: This approach involves excluding certain warranties from the agreement, such as warranties of merchantability and fitness for a particular purpose.
- Waiver of warranties: This approach involves waiving certain warranties or rights, such as the right to sue for damages for breach of warranty.
Summary: In summary, there are several approaches related to disclaimers of warranties, including limiting warranties, providing express warranties, making implied warranties, excluding certain warranties, and waiving certain warranties or rights.
Footnotes
| Disclaimer of warranties — recommended articles |
| Inchoate instrument — Executed agreement — Non-disclosure agreement - nda — Contractual relationship — Exculpatory Clause — Contract of affreightment — Executory consideration — Warranty of title — Sole agent |
References
- Burnham S.J., (2012), Glannon Guide to Sales, Wolters Kluwer Law & Business, New York.
- Miller R.L., Hollowell W.E., (2018), Business Law, Cengage Learning, Brazil.
- Schneider G., (2010), Electronic Commerce, Cengage Learning, Australia.
- Stark T.L., (2003), Negotiating and Drafting Contract Boilerplate, ALM Publishing, New York.
Author: Marlena Dopnik
