Limitation of remedy in Wisconsin

13 authorities

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  However, Article 2 allows buyers and sellers, subject to certain limits discussed below, to make other remedies available in their contract, including “limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts.” WIS. STAT. § 402.719(1)(a). Where a contractually specified remedy “is expressly agreed to be exclusive, … it is the sole remedy.” Sec. 402.719(1)(b).

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  Buddy’s relies on the distinction drawn in the UCC and the contract between breaches of contract and breaches of warranty and the remedies available for each. For example, Buddy’s notes that the UCC provides different remedies for nondelivery of goods and a breach of warranty.

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  As explained below, we conclude that the warranty clause does apply to Viking’s breach of contract. Furthermore, the limitation of liability language in the clause does not fail of its essential purpose and is not unconscionable.

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  Buddy’s first contends that the trial court erred in applying the warranty clause to Viking’s failure to deliver the machine.

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  By its terms, this language applies the limited remedy broadly to “the Contract”—not just the express warranty—and to “any damages arising out of it.” (Emphasis added.) This language would apply both to Viking’s delivery of a defective or nonconforming machine and also to what occurred here—the failure to deliver a nondefective machine. Buddy’s argument that the warranty clause only applies if the machine is delivered but defective or nonconforming cannot be reconciled with this broader language.

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  Buddy’s reliance on the different remedies provided in the UCC for nondelivery and breaches of warranty does not save its argument. Although the Code provides distinct remedies for these breaches, it also permits parties to contract for additional or entirely different remedies. See WIS. STAT. § 402.719(1)(a) (stating that an “agreement may provide for remedies in addition to or in substitution for those provided in this chapter and may limit or alter the measure of damages recoverable under this chapter”). Moreover, the Code makes clear that if the parties agree that a different remedy “is expressly agreed to be exclusive, … it is the sole remedy.” Sec. 402.719(1)(b).

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  Article 2 specifies the following remedy for a buyer’s failure to deliver: the measure of damages for nondelivery … by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in [WIS. STAT. §] 402.715, but less expenses saved in consequence of the seller’s breach. WIS. STAT. § 402.713(1).

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  Under WIS. STAT. § 402.719(2), “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in chs. 401 to 411.” Our supreme court has explained that § 402.719 “gives the parties substantial latitude to fashion their own remedies for breach of the contract.” Murray v. Holiday Rambler, Inc., 83 Wis. 2d 406, 418, 265 N.W.2d 513 (1978); see also Southern Fin. Grp., LLC v. McFarland State Bank, 16 No. 2023AP2428 763 F.3d 735, 741 (7th Cir. 2014) (“Wisconsin courts enforce agreements in which parties allocate risk in advance.”). But a limited remedy agreed to by the parties will not be enforced under the UCC “where [it] would effectively deprive a party of reasonable protection against breach.” Murray, 83 Wis. 2d at 418. The Code requires “that at least minimum adequate remedies be available” to provide “at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract.” Murray, 83 Wis. 2d at 419 (quoting U.C.C. § 2-719, cmt. 1).

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  It relies on WIS. STAT. § 402.719(3), which allows parties to limit or exclude consequential damages “unless the limitation or exclusion is unconscionable.” “To be declared invalid as unconscionable, a contract or contract provision must be determined to be both procedurally and substantively unconscionable.” Aul v. Golden Rule Ins. Co., 2007 WI App 165, ¶26, 304 Wis. 2d 227, 737 N.W.2d 24; see also Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53, ¶¶29, 33, 290 Wis. 2d 514, 714 N.W.2d 155. The procedural aspect of unconscionability examines factors surrounding the contracting process to 20 No. 2023AP2428 determine whether one party faced “an absence of meaningful choice.” Deminsky v. Arlington Plastics Mach., 2003 WI 15, ¶27, 259 Wis. 2d 587, 657 N.W.2d 411; see also Aul, 304 Wis. 2d 227, ¶26 (listing factors). Substantive unconscionability, in contrast, examines “the reasonableness of the contract terms themselves, that is, whether they are commercially reasonable or unreasonably favor the more powerful party.

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  Unconscionability rarely exists in a commercial setting involving parties of equal bargaining power.” Trinkle v. Schumacher Co., 100 Wis. 2d 13, 19-20, 301 N.W.2d 255 (Ct. App. 1980). “This is because there is little need for the court to protect the interests of savvy commercial parties in dealings with each other.” Dry Dock, L.L.C. v. Godfrey Conveyor Co., 717 F. Supp. 2d 825, 834 (W.D. Wis. 2010). Here, Buddy’s has not carried its heavy burden of convincing us that judicial alteration of the terms of the parties’ bargain is necessary.

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  The reason is that the limited remedy in the warranty clause is tied to the express warranty set forth in the clause. The clause begins by setting forth the express warranty given by Viking. The next two sentences obligate Viking to “repair or replace broken or defective Equipment” and specify that the warranty extends only to Buddy’s. The following sentence identifies three categories of defects and damages which are not covered by the express warranty. The clause then disclaims any other express or implied warranties and excludes liability for “indirect, special, incidental or consequential damages, or loss of profits … whether based in contract or tort, resulting from the supply, failure to supply, or failure or malfunction of the Equipment.” ¶51 After specifying what warranties and liabilities are not included in the contract, the last two sentences of the clause address the warranty and liability that are included. Those sentences tie Viking’s liability to the express warranty set forth at the start of the clause. They state that Buddy’s remedy for any damages under the Contract is limited to the express warranty, which states that Viking’s liability under that warranty is “limited to the amount paid to [Viking] hereunder.” Because Viking’s liability under the contract is limited to, and defined by, the express warranty set forth in the warranty clause, the provisions in the clause pertaining to Viking’s liability are not “inappropriately masked” there. See Phillips, 131 Wis. 2d at 38.

• caseWis. Ct. App. No. 2023AP2428Buddy's Plant Plus Corporation v. Viking Masek Global Packaging Technologies, LLCWis. Ct. App.decided 2025
  The words that state the rule

  For the reasons explained above, we conclude that the damage limitation provisions contained within the warranty clause of the contract apply to Viking’s failure to provide the stick pack machine. The limited remedy does not fail of its essential purpose and is not unconscionable. Therefore, the trial court did not err when it limited Buddy’s recoverable damages to the amounts it had paid Viking and declined to award consequential damages. By the Court.—Judgment affirmed.

• case131 Wis.2d 21Phillips Petroleum Co. v. Bucyrus-Erie Co.Wis.decided 1986read it at the source ↗
  The words that state the rule

  Although we do not disagree with the trial court's conclusion that a disclaimer of liability or a limitation on damages that is inappropriately masked under a heading captioned, "Warranty," is in itself a reason to disregard it, we look to the merits of the Phillips' argument that damages ought not be limited to replacement of the defective part F.O.B. Erie because, under sec. 402.719(2), Stats.: " (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in chs. 401 to 409."