Warranty disclaimer

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence (Section 7-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

(3) Notwithstanding subsection (2): (a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b) When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (c) An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

Nothing in subsection (2) or subsection (3) (a) or in Section 7-2-317 shall be construed so as to limit or exclude the seller’s liability for damages for injury to the person in the case of consumer goods.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (Sections 7-2-718 and 7-2-719).

(10) “Conspicuous,” with reference to a term, means so written, displayed, or presented that, based on the totality of the circumstances, a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court as a matter of law.

(b) Subject to definitions contained in other articles of the Uniform Commercial Code that apply to particular articles or parts thereof:

(23) “Consumer goods” means goods that are used or bought for use primarily for personal, family, or household purposes.

Warranties whether express or implied shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant. In ascertaining that intention the following rules apply: (a) Exact or technical specifications displace an inconsistent sample or model or general language of description. (b) A sample from an existing bulk displaces inconsistent general language of description. (c) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.

Fincher maintains that the language used by Robinson in the invoice and in the order form was not "conspicuous" and, therefore, was insufficient as a matter of law to disclaim any implied warranties. The dispositive issue, therefore, is whether there was a disclaimer of warranties under § 7-2-316 (2).

printed in a type and color (red) that contrasted with the type and color used in the remainder of the documents: "The Seller, ROBINSON BROS. L-M, Inc., hereby expressly disclaims all warranties, either express or implied, including any implied warranty of merchantability or fitness for a particular purpose and ROBINSON BROS. L-M, Inc., neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of the vehicle." This language also appeared in these two documents in prominent locations and apart from other language.

"Conspicuous" is defined in § 7-1-201 (10) as follows: "A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is 'conspicuous' if it is in larger or other contrasting type or color. But in a telegram any stated term is 'conspicuous.' Whether a term or clause is 'conspicuous' or not is for decision by the court."

The undisputed facts in this case show that Robinson disclaimed any implied warranties that could have arisen from its sale of the automobile to Fincher. Both the copy of the invoice received by Fincher and the order form signed by him contained disclaimers that satisfy the requirement of conspicuousness set out in § 7-1-201 (10). 2 Accordingly, the summary judgment for *Page 259 Robinson was proper as to the breach of warranty claim.

2 Robinson supplemented the record on appeal to include the original invoice and order form. Those documents clearly show the disclaimers to be in red print. Fincher asserts that the trial court never saw the original documents, but, instead, based its judgment on black and white photocopies of those documents. Fincher argues that the red print shown in the original documents cannot serve as a basis for upholding the judgment. It is difficult for us to tell from the record whether the trial court considered the red print in entering the judgment for Robinson. In any event, we note that even if the disclaimers had not been printed in red they would still satisfy § 7-2-316 (2).

For the foregoing reasons, the judgment is affirmed. AFFIRMED. HORNSBY, C.J., and MADDOX, ALMON, STEAGALL, KENNEDY and INGRAM, JJ., concur.

Under Ala. Code 1975, § 7-2-316 (3)(a), such an "as is" disclaimer does not have to be conspicuous or even mention the word "merchantability." Gaylord v. Lawler Mobile Homes, Inc. , 477 So.2d 382 (Ala. 1985). This disclaimer would ordinarily be sufficient to preclude Lisa's breach of warranty claim. However, she also purchased an "Extended Service Contract" for $395 with Auburn Ford the same day she purchased the car. That contract was to run from June 30, 1986, to March 30, 1987.

We find the following at 15 U.S.C. § 2308 (1982): "§ 2308. Implied warranties "Restrictions on disclaimers or modifications "(a) No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer product, or (2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product. " (Emphasis added.)

Thus, in light of Lisa's service contract, Auburn Ford's disclaimer is ineffective to now exclude any implied warranties.

Accordingly, the judgment is affirmed in all respects upon the condition that Lisa accept a remittitur in the amount of $3,018.83. AFFIRMED CONDITIONALLY.

As previously noted, according to the affidavit of Parsons, an "As Is-No Warranty" sticker was posted on the window of the 1980 Mazda and the words "As Is" were written below the sticker on the face of the Buyer's Guide, which Deborah *Page 315 signed on its reverse side. Deborah also signed an "As Is Bill of Sale," which specifically detailed all of the warranties being disclaimed, including warranties of merchantability and fitness for a particular purpose. Therefore, Creekside satisfied the statutory language of § 7-2-316 (3)(a) by notifying Deborah, in two different documents, that the car she was purchasing was being sold "as is."

However, the Bagleys cite Ala. Code 1975, § 7-2-316 (5), in support of their breach-of-warranty argument. Section 7-2-316 (5) states, in pertinent part, that "[n]othing in subsection (2) 13 or subsection (3)(a) or in Section 7-2-317 14 shall be construed so as to limit or exclude the seller's liability for damages for injury to the person in the case of consumer goods." "Consumer goods" are defined as "goods that are used or bought for use primarily for personal, family, or household purposes." Ala. Code 1975, § 7-9A-102 (a)(23). Here the Bagleys are suing based on personal injuries they suffered as a result of the purchase of a car, which, under the facts of this case, is a consumer good.

The record indicates that on the day Deborah purchased the 1980 Mazda, a wheel came off while the car was being driven. This fact raises the issue whether the car was fit for its ordinary purpose and therefore merchantable. Also, Deborah testified that a salesperson at Creekside, knowing the particular purpose for which Deborah was purchasing the car — roadway transportation — recommended the 1980 Mazda to her and dissuaded her from her first choice, which raises a fact question as to whether an implied warranty of fitness for a particular purpose existed. Thus, the evidence is sufficient to raise a genuine issue of material fact as to the Bagleys' claim as to damages for breach of implied warranties of merchantability and fitness for a particular purpose. We conclude, therefore, that the trial court erred in granting Creekside's motion for a summary judgment on the Bagley's breach-of-warranty claim as to the personal-injury claims arising out of the breach of the implied warranties of merchantability and fitness for a particular purpose; to that extent the summary judgment is due to be reversed.

In summary, the trial court's summary judgments for Creekside and Mazda on the AEMLD claim are affirmed. To the extent the Bagleys' appeal relates to the partial summary judgment for Creekside on the fraud claim, the appeal is dismissed. The trial court's summary judgment for Creekside on the breach-of-express-warranty claim is affirmed, but is reversed as to the breach-of-implied warranty claim(s). The case is remanded for the entry of orders and for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; APPEAL DISMISSED IN PART; AND CASE REMANDED.

The Bagleys' argument that the "law of th[is] case" is that implied warranties existed in the sale of the Mazda automobile they purchased is apparently prompted by the recognition that, as a general rule of law in Alabama, there are no implied warranties on the sale of a used automobile. In Osborn v. Custom Truck Sales Service , 562 So.2d 243 , 247 (Ala. 1990), we stated: "[T]his Court stated in Trax, Inc. v. Tidmore , 331 So.2d 275 , 277 (Ala. 1976): "`The law in Alabama regarding sales of used or second-hand vehicles was stated in Kilborn v. Henderson , 37 Ala.App. 173 , 65 So.2d 533 (1953): "The general rule is that there is no implied warranty of the quality or condition of a used automobile and the rule of caveat emptor applies.'" "See also Curry Motor Co. v. Hasty , 505 So.2d 347 , 350 (Ala. 1987)." See also Roland v. Cooper , 768 So.2d 400 , 406 (Ala.Civ.App. 2000).

Accordingly, we next consider whether the trial court erred in entering a summary judgment for Creekside. In that respect, the Bagleys have presented nothing to show that Osborn and the other Alabama cases holding that no implied warranties attach to the sale of used automobiles are inapplicable to this case, and our research has discovered no basis for so holding. It follows that the Bagleys have failed to establish the existence of any implied warranties in this case. In the absence of any showing that implied warranties existed, the Bagleys' argument that such warranties were not excluded by the "as is" language in the sales contract has no merit, and the trial court correctly entered the summary judgment for Creekside on their breach-of-implied-warranty claim. That summary judgment is therefore due to be affirmed. AFFIRMED.

None of the parties raised any issue in the first appeal in this case as to whether implied warranties attached to the sale of a used automobile. In their briefs in the first appeal, the parties never mentioned the law set out in Osborn and the cases associated with it, and this Court never ruled upon applicability of that law to the facts in this case.

Subject to (c) of this section, to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify an implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face of this instrument.”

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed where reasonable as consistent with each other; but, subject to the provisions on parol or extrinsic evidence ( AS 45.02.202 ), negation or limitation is inoperative to the extent that such construction is unreasonable.

Notwithstanding (b) of this section, (1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” “with all faults,” or other language that in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and (2) when the buyer, before entering into the contract, has examined the goods or the sample or model as fully as the buyer desired or has refused to examine the goods, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed to the buyer; and (3) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

Remedies for breach of warranty can be limited in accordance with the provisions on liquidation or limitation of damages and on contractual modification of remedy ( AS 45.02.718 and 45.02.719).

A seller cannot negate express warranties through generalized disclaimers. 20 But the clear, forceful, specific disclaimer in this contract defeats Michael’s claim that Bering Sea made any enforceable express warranty. This is not a fine-print boilerplate disclaimer which NCI could not have negotiated or understood; it is a conspicuous, clearly written provision in a two-page contract between parties with equal bargaining power.

Its recitation that the “buyer ... had ample opportunity to inspect [the] aircraft and its logs” is not a mere formalism, but reflects NCI’s actual conduct. We therefore conclude that it was both an enforceable disclaimer and evidence of the basis of the parties’ bargain. The numerous discrepancies the mechanic observed and the clear language of the disclaimer could not have left NCI with any illusions that Bering Sea was warranting the aircraft’s condition. We therefore affirm the trial court’s conclusion that Bering Sea “made no warranty concerning the condition of the subject aircraft as of the time of sale.”

(2) Subject to subdivision (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.” (3) Notwithstanding subdivision (2) (a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b) When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (c) An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade. (4) Remedies for breach of warranty can be limited in accordance with the provisions of this division on liquidation or limitation of damages and on contractual modification of remedy (Sections 2718 and 2719).

(a) No sale of goods, governed by the provisions of this chapter, on an “as is” or “with all faults” basis, shall be effective to disclaim the implied warranty of merchantability or, where applicable, the implied warranty of fitness, unless a conspicuous writing is attached to the goods which clearly informs the buyer, prior to the sale, in simple and concise language of each of the following: (1) The goods are being sold on an “as is” or “with all faults” basis. (2) The entire risk as to the quality and performance of the goods is with the buyer. (3) Should the goods prove defective following their purchase, the buyer and not the manufacturer, distributor, or retailer assumes the entire cost of all necessary servicing or repair. (b) In the event of sale of consumer goods by means of a mail order catalog, the catalog offering such goods shall contain the required writing as to each item so offered in lieu of the requirement of notification prior to the sale.

Except as provided in Sections 1793.01 and 1793.02, nothing in this chapter shall affect the right of the manufacturer, distributor, or retailer to make express warranties with respect to consumer goods. However, a manufacturer, distributor, or retailer, in transacting a sale in which express warranties are given, may not limit, modify, or disclaim the implied warranties guaranteed by this chapter to the sale of consumer goods.

Any waiver by the buyer of consumer goods of the provisions of this chapter, except as expressly provided in this chapter, shall be deemed contrary to public policy and shall be unenforceable and void.

No implied warranty of merchantability and, where applicable, no implied warranty of fitness shall be waived, except in the case of a sale of consumer goods on an “as is” or “with all faults” basis where the provisions of this chapter affecting “as is” or “with all faults” sales are strictly complied with.

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this division on parol or extrinsic evidence (Section 2202) negation or limitation is inoperative to the extent that such construction is unreasonable.

Unless disclaimed in the manner prescribed by this chapter, every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable. The retail seller shall have a right of indemnity against the manufacturer in the amount of any liability under this section.

A manufacturer, distributor, or retail seller shall not make an express warranty with respect to a consumer good that commences earlier than the date of delivery of the good. This section does not limit an express warranty made before July 1, 2023.

Every sale of goods that are governed by the provisions of this chapter, on an “as is” or “with all faults” basis, made in compliance with the provisions of this chapter, shall constitute a waiver by the buyer of the implied warranty of merchantability and, where applicable, of the implied warranty of fitness.

The provisions of this chapter shall not affect the rights and obligations of parties determined by reference to the Commercial Code except that, where the provisions of the Commercial Code conflict with the rights guaranteed to buyers of consumer goods under the provisions of this chapter, the provisions of this chapter shall prevail.

(a) “Consumer goods” means any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. “Consumer goods” shall include new and used assistive devices sold at retail.

Every sale of consumer goods that are sold at retail in this state by a manufacturer who has reason to know at the time of the retail sale that the goods are required for a particular purpose and that the buyer is relying on the manufacturer’s skill or judgment to select or furnish suitable goods shall be accompanied by such manufacturer’s implied warranty of fitness.

(a) Every sale of consumer goods that are sold at retail in this state by a retailer or distributor who has reason to know at the time of the retail sale that the goods are required for a particular purpose, and that the buyer is relying on the retailer’s or distributor’s skill or judgment to select or furnish suitable goods shall be accompanied by such retailer’s or distributor’s implied warranty that the goods are fit for that purpose. (b) Every sale of an assistive device sold at retail in this state shall be accompanied by the retail seller’s implied warranty that the device is specifically fit for the particular needs of the buyer.

The defendant in the present case did not use an expression like “as is” in selling the vehicle to the plaintiff, and therefore the trial court’s reliance on the Chamberlain decision was misplaced. The court’s conclusion that no implied warranty of merchantability existed, however, is adequately supported by the record because the purchase order for the vehicle contained a provision expressly disclaiming any implied warranty of merchantability. This provision was conspicuously placed in large type on the reverse side of the purchase order. See General Statutes § 42a-2-316 (2). Although the trial court did not expressly rely on the disclaimer in reaching its conclusion, it did note the existence of the disclaimer provision. We cannot say, therefore, that the court’s failure to find a breach of an implied warranty constituted reversible error.

Section 42a-2-316 (2) provides: “Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ ”

Although the heading of provision 9.2 is the same font and typeface as the other provision headings, the language of the entire provision is in capital letters. This is in contrast with the language of other provisions, which are a mix of upper and lowercase letters. Provision 9.2 was presented in such a way that a reasonable person against which it was to operate ought to have noticed. General Statutes § 42a-1-201 (10); see also Emlee Equipment Leasing Corp. v. Waterbury Transmission, Inc., 31 Conn. App. 455, 471 , 626 A.2d 307 (1993). Provision 9.2 of the contract, therefore, effectively disclaims the implied warranty of merchantability.

“Conspicuous” is defined by General Statutes § 42a-l-201 (10) to “[mean] so written, displayed or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is ‘conspicuous’ or not is a decision for the court. Conspicuous terms include the following: (A) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size; and (B) Language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.”

It states, in relevant part: “VITALWORKS DOES NOT MAKE ANY . . . IMPLIED WARRANTIES TO [THE PLAINTIFF] .... WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.”

General Statutes § 42a-2-316 (3) (a) provides that “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b) when the buyer before entering into the contract has examined the goods ... as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him . . . .”

The plaintiff was aware of her right to have conducted an independent inspection of said vehicle, pursuant to General Statutes § 42-225 and she declined to do so.” The court found, however, that the failure by the plaintiff to exercise such right of inspection did not constitute an exclusion of the implied warranty under General Statutes § 42a-2-316 (3) (b) 9 because there was no assurance that a reasonable inspection under the circumstances at the time of sale would have uncovered the defect.

Because Web Press Services Corp. is a Supreme Court case and Chamberlain is a Circuit Court case, Web Press Services Corp. is more authorita.tive support.

(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.

(5) The implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purposes of this Article be considered commodities or goods subject to sale or barter, but shall be considered as medical services.

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence (Section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”

(3) Notwithstanding subsection (2) (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he or she desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him or her; and (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (Sections 2-718 and 2-719).

(10) “Conspicuous”, with reference to a term, means so written, displayed, or presented that, based on the totality of the circumstances, a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. (A), (B) [Repealed.]

A seller’s warranty whether express or implied extends to any natural person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section.

(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

(a) Unless the context otherwise requires, words or phrases defined in this section, or in the additional definitions contained in other articles of the Uniform Commercial Code that apply to particular articles or parts thereof, have the meanings stated. (b) Subject to definitions contained in other articles of the Uniform Commercial Code that apply to particular articles or parts thereof:

(1) Unless the context otherwise requires, and except as provided in subsection (3), this Article applies to transactions in goods and, in the case of a hybrid transaction, it applies to the extent provided in subsection (2). (2) In a hybrid transaction: (a) If the sale-of-goods aspects do not predominate, only the provisions of this Article which relate primarily to the sale-of-goods aspects of the transaction apply, and the provisions that relate primarily to the transaction as a whole do not apply. (b) If the sale-of-goods aspects predominate, this Article applies to the transaction but does not preclude application in appropriate circumstances of other law to aspects of the transaction which do not relate to the sale of goods.

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but, subject to the provisions of this chapter on parol or extrinsic evidence (s. 672.202), negation or limitation is inoperative to the extent that such construction is unreasonable.

(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it, the language must mention merchantability and in case of a writing must be conspicuous; and, to exclude or modify any implied warranty of fitness, the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”

(11) “Conspicuous,” with reference to a term, means so written, displayed, or presented that, based on the totality of the circumstances, a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” is a decision for the court.

(3) Notwithstanding subsection (2):(a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is” or “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b) When the buyer before entering into the contract has examined the goods or the sample or model as fully as he or she desired or has refused to examine the goods, there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him or her; and (c) An implied warranty can also be excluded or modified by a course of dealing or course of performance or usage of trade. (d) In a transaction involving the sale of cattle or hogs, there is no implied warranty that the cattle or hogs are free from sickness or disease. However, no exemption applies in cases where the seller knowingly sells cattle or hogs that are diseased.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy (ss. 672.718 and 672.719).

(5) The procurement, processing, storage, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body for any purpose whatsoever is declared to be the rendering of a service by any person participating therein and does not constitute a sale, whether or not any consideration is given therefor; and the implied warranties of merchantability and fitness for a particular purpose are not applicable.

(6) The procurement, processing, testing, storing, or providing of human tissue and organs for human transplant, by an institution qualified for such purposes, is the rendering of a service; and such service does not constitute the sale of goods or products to which implied warranties of merchantability or fitness for a particular purpose are applicable. No implied warranties exist as to defects which cannot be detected, removed, or prevented by reasonable use of available scientific procedures or techniques.

Rather, it created a "blood shield" statute within Florida's Uniform Commercial Code for the purpose of eliminating actions for strict liability against blood banks. See § 672.316(5), Fla. Stat. (1989). Section 672.316(5) was enacted to limit the Uniform Commercial Code warranties in the context of the sale of blood by declaring such a sale to be a "service." [3] There is no evidence to suggest that the legislature intended this legal fiction (that selling blood is a "service" rather than a "sale") to apply in any other context.

[3] Section 672.316(5), Florida Statutes (1989), provides: The procurement, processing, storage, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body for any purpose whatsoever is declared to be the rendering of a service by any person participating therein and does not constitute a sale, whether or not any consideration is given therefor; and the implied warranties of merchantability and fitness for a particular purpose are not applicable as to a defect that cannot be detected or removed by a reasonable use of scientific procedures or techniques.

We therefore approve the decision in Durden , quash the opinions in Silva and Smith, and remand for further proceedings. It is so ordered. SHAW, C.J., and McDONALD, KOGAN and HARDING, JJ., concur. GRIMES, J., concurs in part and dissents in part with an opinion, in which McDONALD, J., concurs. OVERTON, J., dissents.

We are aware of the fact that the law in most jurisdictions is that the handling of blood is a service not subject to strict liability as opposed to a sale. This has also become the law in Florida with the passage of Florida Statutes § 672.316(5), F.S.A. This section, however, was adopted after this cause of action arose and is not determinative of this case.

It is therefore clear that under the law in Florida at the time this cause of action arose, this transaction constituted a sale of a product intended for human consumption and the defendant, as the producer of the blood, is subject to strict liability. Accordingly, the decision of the District Court is quashed and the cause remanded to said Court for further proceedings not inconsistent with the holding herein. It is so ordered. ROBERTS, Acting C.J., and ERVIN and McCAIN, JJ., concur. DEKLE, J., dissents.

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence (section 28-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

(3) Notwithstanding subsection (2) (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and

(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and

(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy (sections 28-2-718 and 28-2-719).

Although a warranty exclusion clause must be conspicuous and must contain a specific reference to “merchantability” in order to exclude the warranty of merchantability under I.C. § 28-2-316(2), the warranty may also be excluded under I.C. § 28-2-316(3)(a) without mentioning merchantability.

In this case, the retail order, which was read and signed by Haight at the time of the sale, stated: “This unit sold as is. No warranty or guarantee stated or implied.” Additionally, the buyer’s guide contained two boxes that Dale’s could mark to indicate to the buyer whether any warranty was made with regard to the Jeep or whether the Jeep was sold as is with no warranty. The district court found that Dale’s had, in a manner sufficient to exclude the warranty' of fitness, marked next to the “as is” box on the buyer’s guide. In bold capital lettering above Haight’s signature, the installment sale contract stated that the Jeep was being “sold as is, with all defects, and without any warranty of fitness or merchantability.” Although the district court found that the warranty exclusion language using the term “merchantability” was not conspicuous, we reach a contrary conclusion. *857 The use of bold lettering and the placement of the warranty disclaimer close to the signature line makes it qualify as “conspicuous.” It, therefore, satisfied the requirements of I.C. § 28-2-316(2) with respect to the implied warranty of merchantability.

Even if the implied warranties of merchantability and fitness had not been effectively excluded under I.C. § 28-2-316(2), they were nonetheless excluded under subsection 28-2-316(3)(a) by the “as is” language on the buyer’s guide.

The district court’s judgment entered in favor of Dale’s and the Zooks in this action for revocation of acceptance is affirmed.

(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence (Section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

(3) Notwithstanding subsection (2) (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade; and

(d) the implied warranties of merchantability and fitness for a particular purpose do not apply to the sale of cattle, swine, sheep, horses, poultry and turkeys, or the unborn young of any of the foregoing, provided the seller has made reasonable efforts to comply with State and federal regulations pertaining to animal health. This exemption does not apply if the seller had knowledge that the animal was diseased at the time of the sale.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (Sections 2-718 and 2-719).

Surely, whatever other context there might be in which a contractual provision would be found to be procedurally unconscionable, that label must apply to a situation such as the case at bar where plaintiff has testified that she never saw the clause; nor is there any basis for concluding that plaintiff could have seen the clause, before entering into the sale contract.

Accordingly, we affirm the circuit court's order to that effect, as well as the $3,500 which represents that portion of the jury verdict intended to recompense plaintiff for the consequential damages she incurred.

We decline to accept the dissent's invitation to consider section 702.3 sua sponte and decide this issue on the basis of an argument the parties have never made, not in the circuit court, the appellate court, initial briefing before this court, nor even on rehearing. We intimate no suggestion as to what the outcome of this or any future case might be if this or any other argument were properly raised before this court or the circuit court

We would have been content if the warranty was merely referred to in the sale contract, whereas the FTC regulation clearly and unambiguously requires that the written warranty itself must be conveyed at the time of sale.

(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this Section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any. (3) Unless excluded or modified (Section 2-316) other implied warranties may arise from course of dealing or usage of trade.

Where the seller at the time of contracting 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 unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

Subject to subsection 3, to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”

Notwithstanding subsection 2 a. unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and b. when the buyer before entering into the contract has examined the goods or the sample or model as fully as the buyer desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to the buyer; and c. an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence (section 554.2202) negation or limitation is inoperative to the extent that such construction is unreasonable.

Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (sections 554.2718 and 554.2719).

“Conspicuous”, with reference to a term, means so written, displayed, or presented that, based on the totality of the circumstances, a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court.

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

(3) Notwithstanding subsection (2): (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and

(d) with respect to the sale of livestock, other than the sale of livestock for immediate slaughter, there shall be no implied warranties, except that the provisions of this paragraph shall not apply in any case where the seller knowingly sells livestock which is diseased.

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence (K.S.A. 84-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

(c) A supplier may limit the supplier's implied warranty of merchantability and fitness for a particular purpose with respect to a defect or defects in the property only if the supplier establishes that the consumer had knowledge of the defect or defects, which became the basis of the bargain between the parties. In neither case shall such limitation apply to liability for personal injury or property damage.

(h) This section shall not apply to sales of livestock for agricultural purposes, other than sales of livestock for immediate slaughter, except in cases where the supplier knowingly sells livestock which is diseased.

(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as such buyer desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to such buyer; and

(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade

Notwithstanding any other provisions of law, with respect to property which is the subject of or is intended to become the subject of a consumer transaction in this state, no supplier shall: (1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability as defined in K.S.A. 84-2-314, and amendments thereto, and fitness for a particular purpose, as defined in K.S.A. 84-2-315, and amendments thereto; or (2) exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of implied warranty of merchantability and fitness for a particular purpose.

A disclaimer or limitation in violation of this section is void. If a consumer prevails in an action based upon breach of warranty, and the supplier has violated this section, the court may, in addition to any damages recovered, award reasonable attorney fees and a civil penalty under K.S.A. 50-636, and amendments thereto, to be paid by the supplier who gave the improper disclaimer.

(f) The making of a limited express warranty is not in itself a violation of this section. (g) This section shall not apply to seed for planting.

(i) This section shall not apply to the disposal of surplus property by any governmental entity if the governmental entity has given conspicuous written notice of the warranty limitation, exclusion or disclaimer.

(10) "Conspicuous," with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following: (A) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things.

The parties may agree to an exclusion or limitation of the warranty against redhibitory defects. The terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer.

Thus, although the warranty against redhibitory defects may be excluded or limited, a seller cannot contract against his own fraud and relieve himself of liability to fraudulently induced buyers.

Under this article, an otherwise effective exclusion or limitation of the warranty against redhibitory defects is not effective if the seller commits fraud, as defined in the civil code, upon the buyer.

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

In sum, there are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim's consent to (a cause of) the contract.

A buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have.

In conclusion, we find plaintiffs conjectural allegations of fraud are too speculative. Plaintiff has failed to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial. Summary judgment was properly granted in defendants' favor. Accordingly, the judgment of the court of appeal is affirmed. AFFIRMED.

Creole Gardens had the burden to prove a redhibitory defect existed at the time of sale and that the Schreibers knowingly failed to disclose this defect. The district court not only found that the Schreibers did not make a false warranty about the existence of fire code violations at the time of sale, but also that they did not make any knowing misrepresentations—necessary elements to recover when the warranty against redhibitory defects has been waived. Our review finds no error in these findings. Accordingly, based on the foregoing reasons, we affirm the judgment.

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other

to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.

Notwithstanding subsection (2) (a). Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b). When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (c). An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy ( sections 2‑718 and 2‑719 ).

"Conspicuous," with reference to a term, means so written, displayed or presented that, based on the totality of the circumstances, a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court.

The provisions of subsections (2) , (3) and (4) do not apply to sales of consumer goods or services. Any language, oral or written, used by a seller or manufacturer of consumer goods and services that attempts to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify the consumer's remedies for breach of those warranties is unenforceable.

A violation of section 2‑314 , 2‑315 or 2‑316 arising from the retail sale of consumer goods and services constitutes a violation of Title 5, chapter 10 , Unfair Trade Practices Act.

Consumer goods and services are those new or used goods and services, including mobile homes, that are used or bought primarily for personal, family or household purposes.

A seller or manufacturer of a motor vehicle may indicate that, to the extent permitted by law, the seller or manufacturer is excluding or modifying implied warranties.

We note at the outset that Maine is the only jurisdiction to adopt a Uniform Commercial Code provision which provides that “violations” of the Code constitute per se violations of the Unfair Trade Practices Act.

Subsection (5) speaks only to the attempt of a seller or manufacturer of consumer goods “to exclude or modify any implied warranties or [sic] merchantability and fitness for a particular purpose or to exclude or modify the consumer’s remedies for breach of those warranties

If Branch River effectively disclaimed all implied warranties, either through a “standard” warranty with disclaimers that was part of the parties’ initial contract, or through the “express” warranty identified as Exhibit 21, it could not, as a matter of law, be held liable on the two claims at issue at trial: breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose.

If the court rules, based on the evidence presented at trial, that Branch River made no legally operative disclaimer of implied warranties, the court must re-enter the judgment on the jury’s verdict in Arundel Valley’s favor. If, on the other hand, the court rules that Branch River did disclaim the implied warranties of merchantability and fitness for a particular purpose— by way of an express warranty or otherwise—it must enter a judgment in Branch River’s favor on the two implied warranty counts. 12 The entry is: Judgment vacated as to Count XI (breach of implied warranty of merchantability) and Count XII (breach of implied warranty of fitness for a particular purpose). Remanded for further proceedings consistent with this opinion.

Minnesota Statutes § 336.2-314 implies a warranty of merchantability in all contracts for the sale of goods unless the parties exclude or modify the implied warranty.

Parties may exclude the implied warranty of merchantability with a written and conspicuous disclaimer. Minn. Stat. § 336.2-316 (2). Such a disclaimer is far-reaching: " unless the circumstances indicate otherwise , all implied warranties are excluded by expressions like 'as is.' " Minn. Stat. § 336.2-316 (3)(a) (emphasis added).

we hold that Ride Auto's fraudulent statements about the fitness of the truck for the purpose for which a truck is purchased are a circumstance that make the "as is" disclaimers of implied warranties in the purchase documents ineffective under Minn. Stat. § 336.2-316 (3)(a).

But, Ride Auto and Western argue, if we determine that fraud is a "circumstance" for purposes of Minn. Stat. § 336.2-316 , there will be no effective way for parties to contractually waive or limit warranties. We disagree. This case involves fraud. We express no opinion about other cases not before us, but not all misstatements will constitute fraud.

The pertinent portion of the new statute provides that— “* * * to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, *298 and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.”

It is sufficient to say that the thrust of our decisions has been to protect the buyer from obscure and inconspicuous disclaimers by giving the buyer the benefit of the implied warranty where it is reasonable to do so.

We are not persuaded here that the warranty found on the back cover of the Evinrude brochure played any part in the transaction giving rise to the sale. There is no evidence that the warranty was delivered to plaintiff at the time of the sale or that he was told that the sale was subject to warranties contained in the manual of instructions. Since disclaimer of the warranty is in the nature of an affirmative defense, it would seem that defendant had the obligation to establish that it was delivered at the time of sale and constituted an integral part of the transaction. We cannot agree that the circumstances surrounding the delivery of the brochure to the purchaser remotely approached the dignity of an express agreement comprehended by Minn. St. 1961, § 512.71. We accordingly hold that the trial court was correct in determining that there was in fact an implied warranty of merchantability, that defendant company had an obligation to furnish plaintiff with a motor craft that was reasonably fit for the purpose for which it was sold, and that the manufacturer breached its obligation.

The first point raised by Evinrude is that the transaction is governed by Minn. St. 1961, § 512.15(4), which provides that where an article is sold under its trade name, there can be no implied warranty as to its fitness for any particular purpose. 1 Our decisions prior to the adoption of the current Uniform Commercial Code favor the view that § 512.15(4) does not necessarily operate effectively to deprive the buyer of the benefits of implied warranties as to fitness and merchantability. Iron Fireman Coal Stoker Co. v. Brown, 182 Minn. 399 , 234 N. W. 685 ; Federal Motor Truck Sales Corp. v. Shanus, 190 Minn. 5 , 250 N. W. 713 ; Bekkevold v. Potts, 173 Minn. 87 , 216 N. W. 790 , 59 A. L. R. 1164. We find no authority which would indicate that § 512.15(4). would negate the implied warranties of fitness or merchantability in a substantial sale involving motor-powered equipment bearing the name of a well-known manufacturer.

It is of interest to note that Minn. St. 336.2—316, the current provision of the Uniform Commercial Code which deals with the exclusion or modification of warranties in sales transactions, is consistent with the approach adopted by this court in the decisions cited.

plaintiff was provided with a brochure or owner’s manual prepared by the manufacturer. The manual was a 34-page booklet of instructions covering the operation and maintenance of the boat. On the inside of the back cover, the following warranty was printed:

1 Minn. St. 1961, § 512.15(4), provides: “In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.” This section was a part of the Uniform Sales Act, which has now been superseded by the Uniform Commercial Code, Minn. St. 336.2 — 101 to 336.2 — 725.

Defendant also calls attention to Minn. St. 1961, § 512.71, which provides that, where a liability would arise under a sale by implication of law, “it may be negatived or varied by express agreement or by the course of dealing between the parties.”

we hold that the district court did not err in awarding recovery to Sorchaga on claims for fraud and breach of warranty. CONCLUSION For the foregoing reasons, we affirm the decision of the court of appeals. Affirmed.

Rogers v. Hilger Chevrolet Company, supra, it becomes necessary to determine what effect the “as is” clause has on such a duty. The phrase “as is” is a statutorily approved method of excluding warranties. The controlling statute is section 30-2-316(3) (a), MCA, which provides:

Section 30-2-316, MCA, does not require that a disclaimer of implied warranties be specifically pointed out to the consumer. In order to "exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous. . .." Section 30-2-316(2), MCA. In the instant case, the disclaimer was not hidden in the fine print. The language was in larger, darker, bolder type. It was also capitalized and underlined.

Warranty of title is not subject to the disclaimers found in 5 30-2-316, MCA, pertaining to fitness and merchant- ability.

A warranty under subsection (1) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title or that the seller is purporting to sell only the right or title as the seller or a third person may have.

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

Notwithstanding subsection (2): (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty;

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence ( 30-2-202 ) negation or limitation is inoperative to the extent that such construction is unreasonable.

Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy ( 30-2-718 and 30-2-719 ).

Subject to subsection (2) there is in a contract for sale a warranty by the seller that: (a) the title conveyed shall be good, and its transfer rightful; and (b) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.

when the buyer before entering into the contract has examined the goods or the sample or model as fully as desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to the buyer; (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade;

in sales of cattle, hogs, sheep, or horses, there are no implied warranties, as defined in this chapter, that the cattle, hogs, sheep, or horses are free from sickness or disease; and (e) in sales of any seed for planting (including both botanical and vegetative types of seed, whether certified or not), there are no implied warranties, as defined in this chapter, that the seeds are free from disease, virus, or any kind of pathogenic organisms.

The relevant portion provides that ‘ ‘to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.

Section 2-316, U. C. C., pertains to the exclusion or modification of warranties.

The statute is silent as to when the disclaimer must be made.

Section 1-201(10) reads: “Whether a term or clause is ‘conspicuous’ or not is for decision by the court.” On the basis of § 1-201(10), we hold that the trial court erred in submitting the issue of the label’s conspicuousness to the jury. However, such error would be prejudicial only if it adversely affected the defendant’s substantial rights. Since the defendant would have a substantial right affected only if the disclaimer is conspicuous as a matter of law, we first resolve that issue and then return to whether prejudice arose from the jury instruction.

the heading “DISCLAIMER” is prominently displayed. The disclaimer is sufficiently set off from other material so as to draw attention to itself. Also, the disclaimer is on the third page of the label, although the record establishes that the only label presented to Adams was contained in a manual. Therefore, *349 notwithstanding the fact that the label appears in a manual, we hold that the disclaimer was conspicuous as a matter of law.

It is clear from these cases that the mere fact that a disclaimer of the implied warranty of merchantability is conspicuous will not relieve a seller of liability if the buyer never receives the disclaimer.

Therefore, we hold that in order for the disclaimer in the case at bar to be effective, the defendant must establish that the disclaimer came into Adams’ possession, so that he had an opportunity to see and read the disclaimer or, at the least, that the terms of the disclaimer were brought to Adams’ attention. On remand, the court is directed to so instruct the jury.

Even if Johnson was the agent of the Adamses, which we need not decide, the cases require that the disclaimer be presented to the purchaser if it is to become part of the bargain.

Conversely, if a disclaimer is conspicuous, it is effective so long as the buyer receives the disclaimer and has a reasonable opportunity to read it.

Neb. U.C.C. § 2-316(2) (Reissue 1980) reads: Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous

Although this court has not specifically addressed the question, other jurisdictions have generally held that disclaimers or warranty made on or after delivery of the goods by means of an invoice, receipt, or similar note are ineffectual unless the buyer assents or is charged with knowledge as to the transaction.

The above proposition of law is both an equitable and logical interpretation of the Uniform Commercial Code, and should be followed in this case.

Not only was the defendant prejudiced by the court’s submission of the issue of conspicuousness to the jury, but the failure of the district court to instruct on the issue of Adams’ receipt of the disclaimer is plain error indicative of a probable miscarriage of justice. We therefore remand the cause for a new trial.

The purchase agreement evidencing the sale of the van from Woodhouse to the Wilkes included a conspicuous statement that it was sold "as is," "without any warranty either expressed or implied," and further stated that Woodhouse was disclaiming any implied warranty of merchantability. This language met the requirements of ž 2-316(2) and (3)(a) for excluding an implied warranty of merchantability.

We conclude that Woodhouse effectively disclaimed all implied warranties, including the warranty of merchantability.

In addition, we note that § 2-316(3) provides in part: “(3) Notwithstanding subsection (2) “(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty . . . .

(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof." (3) Notwithstanding subsection (2) (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is" , "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

It must be noted, however, that the sections of the Sales Act, to which reference has been made, do not impose warranties in terms of unalterable absolute's. B. S. 46:30—3 provides in general terms that an applicable warranty may be negatived or varied by express agreement. As to disclaimers or limitations of the obligations that normally attend a sale, it seems sufficient at this juncture to say they are not favored, and that they are strictly construed against the seller.

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Chapter on parol or extrinsic evidence (12A:2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of this Chapter on liquidation or limitation of damages and on contractual modification of remedy (12A:2-718 and 2-719).

Warranties whether express or implied shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant. In ascertaining that intention the following rules apply: (a) Exact or technical specifications displace an inconsistent sample or model or general language of description. (b) A sample from an existing bulk displaces inconsistent general language of description. (c) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.

No consumer contract, warranty, notice or sign, as provided for in this act, shall contain any provision by which the consumer waives his rights under this act. Any such provision shall be null and void. No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey; provided, however, that this shall not apply to warranties.

In the framework of this case, illuminated as it is by the facts and the many decisions noted, we are of the opinion that Ohrysler’s attempted disclaimer of an implied warranty of merchantability and of the obligations arising therefrom is so inimical to the public good as to compel an adjudication of its invalidity.

The warranty before us is a standardized form designed for mass use. It is imposed upon the automobile consumer. He takes it or leaves it, and he must take it to buy an automobile. No bargaining is engaged in with respect to it. In fact, the dealer through whom it comes to the buyer is without authority to alter it; his function is ministerial—simply to deliver it.

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

Because the contract "[did] not result from the [worker's] consent," we invalidated its "unconscionable" eviction provision. Id. at 104 , 415 A. 2d 1156 ; see also Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575 , 111 A. 2d 425 (App.Div. 1955) (lease provision exculpating residential landlord from liability held contrary to public policy). Thus, in determining whether to enforce the terms of a contract of adhesion, courts have looked not only to the take-it-or-leave-it nature or the standardized form of the document but also to the subject matter of the contract, the parties' relative bargaining positions, the degree of economic compulsion motivating the "adhering" party, and the public interests affected by the contract. Applying those criteria to the project notes, we find insufficient reason to invalidate the notice-by-publication term.

(10) "Conspicuous," with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following: (a) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (b) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

There remains also the question of what effect if any shall be given the disclaimer and waiver of warranty printed on the lumber company’s invoice. For purposes of the present disposition we assume, without deciding, that the waiver here involved, so far as size and style of print, location, etc., met the requirements of section 1-201 (subd. [10]) of the Uniform Commercial Code as “ conspicuous ”. Subdivision (2) of section 2-316 of the Uniform Commercial Code in pertinent part provides: “ to exclude or modify the implied warranty of merchantability of any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘ There are no warranties which extend beyond the description on the face hereof. ’ ” This provision is obviously addressed to the language and form to be used if any exclusion of warranties is to be effective. The section does not undertake, nor does any other section of the code undertake, to specify who shall and who shall not be bound by an exclusion of warranties which meets the requirements of section 2-316.

It bears in large capital letters the legend “ NO CLAIMS ALLOWED UNLESS MADE IMMEDIATELY AFTER. DELIVERY ” (underscored words in original). Immediately below this legend appeared the following: “ NOTE — The purchaser shall be deemed to have accepted these goods as is, the seller having made no representations or warranties whatsoever with respect to their quality, fitness for use, or in any other regard thereto.” The word “ NOTE ” was printed in the largest type used in the body of the invoice, but the text of the disclaimer is printed in the smallest type used on the invoice.

The trial court had held that the requirements of the Uniform Commercial Code (§ 2-316, subd. [2] and § 1-201, subd. [10]) were not met and accordingly did not reach the question as to whether, had they been met, the disclaimer would have been valid against the purchaser’s employees. The majority at the Appellate Division, on the other hand, held that the requirements of the code had been met on the facts of this case and that the effect of the disclaimer extended to plaintiffs.

In this case, however, we find no basis for holding that these plaintiffs should be barred from recovery by reason of the imprint of the exclusion of warranties legend on the invoice in this case. Plaintiffs were complete strangers to the contract; there is no evidence that either of them ever saw the invoice in question or knew of its contents. No authorities or rationale are tendered to support the extension of the disclaimer to plaintiffs with reference to claims predicated on strict products liability. We agree with the position of the dissenters at the Appellate Division that these plaintiffs were not bound by the terms of the contract between their employer and defendant lumber company. We see no necessity to labor the point that, in the absence of special circumstances not present here, buyer and seller cannot contract to limit the seller’s exposure under strict products liability to an innocent user or bystander. The order of the Appellate Division must be reversed and the case remitted for a new trial.

Subject to subsection (c) [of this section], to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

(c) Notwithstanding subsection (b) [of this section] (1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and (2) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (3) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

Conspicuous. - With reference to a term, means so written, displayed, or presented that, based on the totality of the circumstances, a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court.

(40) Term. - A portion of an agreement that relates to a particular matter. (41) Unauthorized signature. - A signature made without actual, implied, or apparent authority.

(43) Writing. - Includes printing, typewriting, or any other intentional reduction to tangible form. "Written" has a corresponding meaning.

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence (G.S. 25-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

Remedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (G.S. 25-2-718 and 25-2-719).

Subject to subsection 3, to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof".

Notwithstanding subsection 2: - Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults", or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty. - When the buyer before entering into the contract has examined the goods or the sample or model as fully as the buyer desired or has refused to examine the goods, there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to the buyer. - An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade. - The implied warranties of merchantability and fitness shall not be applicable to a contract for the sale of human blood, blood plasma, or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma, or tissue or organs shall not for the purposes of this chapter be considered commodities subject to sale or barter, but shall be considered as medical services.

With respect to the sale of cattle, hogs, sheep, and horses, there shall be no implied warranty that cattle, hogs, sheep, and horses are free from sickness or disease at the time the sale is consummated, conditioned upon reasonable showing by the seller that all state and federal regulations pertaining to animal health were complied with. - Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy (sections 41-02-97 and 41-02-98).

The bill of sale, signed by Michael Ward, states in clear, conspicuous language: “The undersigned, as purchaser, states that he has purchased at public auction the above listed items and therefore understands that they do not carry any warranty. All items sold As-Is, Where-Is_ The undersigned acknowledges that he/she has read the foregoing statement ... ALL SALES ARE FINAL.”

We conclude the district court correctly determined the bill of sale fulfilled the requirements of N.D.C.C. § 41-02-33(3)(a).

Ward Farms also argues either the bill of sale or the bidder contract amounts to an adhesion contract as it was offered on a “take it or leave it” basis, and the “as is” language is unconscionable and against public policy.

We conclude the district court did not abuse its discretion in *876 denying Ward Farms’ motion to amend because it was untimely, and the proposed amendment was futile; the new claim would not survive a summary judgment motion.

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed whenever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence (section 41-02-09), negation or limitation is inoperative to the extent that such construction is unreasonable.

"Conspicuous", with reference to a term, means so written, displayed, or presented that, based on the totality of the circumstances, a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court.

An expression regarding the value of the goods or a seller’s opinion or commendation of the goods does not create a warranty. N.D.C.C. § 41-02-30(2). However, “[u]nless excluded or modified ... a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” N.D.C.C. § 41-02-31(1). “[A]ll implied warranties are excluded by expressions like ‘as is’, ‘with all faults’, or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.” N.D.C.C. § 41-02-33(3)(a). An official comment to the statute discusses terms like “as is” or “with all faults,” stating, “[s]uch terms in ordinary commercial usage are understood to mean that the buyer takes the entire risk as to the quality of the goods involved.”

Both the bidder contract and the bill of sale contained clear and conspicuous language disclaiming any warranties and stating all items are sold “as is,” and Michael Ward admitted signing both documents. Ward Farms did not raise an issue of material fact regarding its breach of warranty claims. We conclude the district court did not err in granting Enerbase’s summary judgment motion.

The district court addressed the inequality of bargaining power issue by noting Michael Ward understood the tractor was being auctioned off “as is,” he was an experienced farmer and attorney, and he was experienced in attending auctions and buying auction items.

[7] Construction Associates and Fargo Water argue that Scientific Application, Inc. v. Delkamp, 303 N.W.2d 71 (N.D.1981), and Eichenberger v. Wilhelm, 244 N.W.2d 691 (N.D.1976), require that limitations of remedies or exclusions of damages be part of the basis of the bargain of the contract of sale in order to be enforceable. Those cases involved disclaimers of warranties, not limitation of remedies or exclusion of damages. In Fleck v. Jacques Seed Co., 445 N.W.2d 649, 654 (N.D.1989) we have reiterated that a disclaimer of warranty must be part of the basis of the bargain to be enforceable.

R.C. 1302.29(B) governs disclaimers of warranty. It provides: (B) Subject to division (C) of this section, to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. * * *

“[L]ongstanding Ohio jurisprudence provides that purchasers * * * may assert a contract claim for breach of implied warranty only against parties with whom they are in privity.” Curl v. Volkswagen of Am., Inc., 114 Ohio St.3d 266, 2007- Ohio-3609, 871 N.E.2d 1141, ¶ 26

Here, Tatman and Son’s is not in privity with Vermeer because, in Ohio, vertical privity exists only between immediate links in the distribution chain. Curl at ¶ 32.

R.C. 1302.27, implied warranty of merchantability, and R.C. 1302.28, implied warranty of fitness for a particular purpose, governs UCC contract claims for breach of implied warranty.

Furthermore, because the lack of privity is dispositive of this issue, we decline to reach the issue of disclaimer of implied warranties under R.C. 1302.29(B). The trial court did not err in dismissing count two of the complaint insofar as it advances a claim for breach of implied warranty under contract law.

The sale of goods in Ohio may entail both express and implied warranties, including the implied warranty that the goods “are fit for the ordinary purposes for which such goods are used.” R.C. 1302.27(B)(3); Raze Internatl., Inc. v. Southeastern Equip. Co., Inc., 2016-Ohio-5700, 69 N.E.3d 1274, ¶ 26 (7th Dist.). “[U]nless the circumstances indicate otherwise all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’, or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty.” R.C. 1302.29(C)(1). Additionally, “when the buyer before entering into the contract has examined the goods * * * as fully as he desired or has refused to examine the goods there is no implied warranty Case No. 23 CA 0964 –9– with regard to defects which an examination ought in the circumstances to have revealed to him.” R.C. 1302.29(C)(2).

The implied warranty of merchantability is set forth in R.C. 1302.27, which provides, in relevant part: “(A) Unless excluded or modified as provided in section 1302.29 of the Revised Code, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.”

See R.C. 1302.28 (“Where the seller at the time of contracting 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.”).

Subject to subsection (3) of this section, to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.” (3) Notwithstanding subsection (2) of this section: (a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and

When the buyer before entering into the contract has examined the goods or the sample or model as fully as the buyer desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to the buyer; and (c) An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade; and (d) With respect to the sale of livestock between merchants, excluding livestock sold for immediate slaughter, there shall be no implied warranty that the livestock animal is free from disease except where the seller had knowledge or reason to know that the animal was not free from disease at the time of the sale.

“Conspicuous,” with reference to a term, means so written, displayed or presented that, based on the totality of the circumstances, a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court.

Oregon courts have previously held that warranty disclaimers are not sufficiently conspicuous if placed under a heading titled “warranty.”

“Consumer good” means a new consumer good as defined in ORS 79A.1020 and includes, but is not limited to, a new motor vehicle, new manufactured dwelling, new modular home, new machine, new appliance or new like product used or bought for use primarily for personal family or household purposes. However, “consumer good” does not include a soft good or a consumable.

Except with respect to sale of a consumer good by means of a mail-order catalog, on sale of a consumer good on an “as is” or “with all faults” basis effective disclaimer of the implied warranty of merchantability or the implied warranty of fitness requires that a conspicuous writing attached to the consumer good clearly informs the buyer before sale in simple and concise language that: (a) The good is being sold on an “as is” or “with all faults” basis; (b) The entire risk as to the quality and performance of the good is with the buyer; and (c) If the good proves defective after purchase, the buyer and not the manufacturer, distributor or retailer assumes the entire cost of all necessary servicing or repair.

On sale of a consumer good by means of a mail-order catalog effective disclaimer of the implied warranty of merchantability or the implied warranty of fitness requires that the catalog offering the good contain, with respect to each item or good so offered, the conspicuous writing and information otherwise prescribed by subsection (1) of this section.

Nothing in ORS 72.8010 to 72.8200 affects the right of a manufacturer, distributor or retailer to make an express warranty with respect to a consumer good. Effective disclaimer of the implied warranty of merchantability or the implied warranty of fitness by a manufacturer, distributor or retailer making an express warranty with respect to a consumer good requires compliance with ORS 72.8050.

When with respect to sale of a consumer good to a retail buyer no express warranty is made or the duration of an express warranty is not stated, the implied warranty of merchantability or, if applicable, the implied warranty of fitness endures: (a) Except if the good is a motor vehicle, for one year after the sale; or (b) If the good is a motor vehicle, until expiration of one year after the sale or until 12,000 miles of use, whichever first occurs. (3) When with respect to sale of a consumer good to a retail buyer an express warranty of a stated duration is made, the implied warranty of merchantability or, if applicable, the implied warranty of fitness endures for not less than 60 days after the sale and for the duration of the express warranty or the duration prescribed for the good under subsection (2) of this section, whichever first occurs.

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ “(3) Notwithstanding subsection (2) (a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”

We believe that bulletin No. 27 satisfied subsection 3(a) of § 6A-2-316. The language that Bird used indicating that Bird would no longer “specify” or “bond” the two-ply system was language commonly used in the trade to indicate that Bird would no longer warrant the system.

Section 6A-2-316 does not mandate that a limitation of liability clause expressly mention the implied warranty of merchantability in order to effectively waive this implied warranty. Rather, a general statement that no warranties exist beyond those contained in the document is sufficient.

We agree that to be effective, a disclaimer of warranty must be conspicuous; however, according to §§ 6A-2-316 and 6A-2-329, the fact that a disclaimer is conspicuous and has been examined by the purchaser is not sufficient to constitute a disclaimer.

No consumer sale on an ‘as is’ or ‘with all faults’ basis shall be effective to disclaim the implied warranty of merchantability, or where applicable, the implied warranty of fitness, unless a conspicuous writing clearly informs the buyer prior to the sale, in simple and concise language each of the following: (1) The goods are being sold on an ‘as is’ or ‘with all faults’ basis; and (2) The entire risk as to the quality and performance of the goods is with the buyer.

The meaning of the language must be clear to the buyer in addition to being conspicuous.

It is not clear whether Fournier intends to disclaim all warranties running to every automobile it sells or just to those used vehicles sold “as is” that are not expressly warranted.

Although the disclaimer of warranties provision is in full compliance with the UCC provisions in terms of its conspicuousness and language, we conclude that in Rhode Island, a disclaimer for personal injuries arising from the use of a consumer product introduced into the stream of commerce is “unconscionable.”

No dealer shall sell a used motor vehicle to a consumer without giving the consumer a written warranty which shall at minimum apply for the following terms:

the dealer shall post a notice unobstructed and conspicuously on the windshield of the vehicle to be sold. The notice shall be at least eight and one-half inches (8½") by eleven inches (11") in size, in bold print one inch in height, and shall state, “NO WARRANTY AS TO CONDITION — SOLD AS IS”.

any waiver or disclaimer of the rights set forth in this chapter shall be printed on the bill of sale in a type size larger and of a different color than any other type on the bill of sale. The waiver shall be separately initialed by the purchaser and the dealer.

this chapter shall not apply to used motor vehicles sold for less than one thousand five hundred dollars ($1,500). Further, this chapter shall not apply to the sale of classic cars registered pursuant to this title.

“Consumer” means the purchaser, other than for purposes of resale, of a used motor vehicle normally used for personal, family, or household purposes and subject to a warranty

Clear and conspicuous notice of the warranties created by this chapter of the rights pertaining to them and of the implied warranty of merchantability shall be given to the consumer in writing at the time the consumer purchases a used motor vehicle from the dealer.

The appeals are therefore denied and dismissed, and the judgments entered in the Superior Court are hereby affirmed.

We find that this language is ambiguous; therefore, it does *1181 not constitute an effective disclaimer of the implied warranty of merchantability.

We are of the opinion that the trial justice did err, and therefore, we reverse the judgment of the Superior Court concerning counts 1, 2, and 4.

A seller’s failure to provide the buyer with the documents and forms promulgated by the director of the department of revenue pursuant to this section shall constitute prima facie evidence of bad faith and unfair and deceptive trade practice under § 6-13.1-1. Violations of this section shall be actionable by the buyer under §§ 31-5.4-5 and 6-13.1-5.2.

Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.

If the used motor vehicle has thirty-six thousand (36,000) miles or less, the warranty shall be at a minimum of sixty (60) days or three thousand (3,000) miles, whichever comes first.

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.

(3) Notwithstanding subsection (2), (a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and (b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

The UCC contemplates that only implied warranties can be disclaimed by use of “as is” clauses.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy (§§ 57A-2-718 and 57A-2-719 ).

(a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence (Section 2.202 ) negation or limitation is inoperative to the extent that such construction is unreasonable. (b) Subject to Subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof." (c) Notwithstanding Subsection (b) (1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and (2) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and (3) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade. (d) Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy (Sections 2.718 and 2.719 ).

(b) Subject to Subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention "merchantability," be by a writing, and be conspicuous. Subject to Subsection (c), to exclude or modify an implied warranty of fitness the exclusion must be by a writing and be conspicuous. Language to exclude all implied warranties of fitness is sufficient if it is in writing, is conspicuous and states, for example, "There is no warranty that the goods will be fit for a particular purpose." (c) Notwithstanding Subsection (b), but subject to Subsection (d): (1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," or "with all faults," or by other language that in common understanding calls the lessee's attention to the exclusion of warranties and makes plain that there is no implied warranty, if in writing and conspicuous; (2) if the lessee before entering into the lease contract has examined the goods or the sample or model as fully as desired or has refused to examine the goods, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed; and (3) an implied warranty also may be excluded or modified by course of dealing, course of performance, or usage of trade. (d) To exclude or modify a warranty against interference or against infringement (Section 2A.211 ) or any part of it, the language must be specific, be by a writing, and be conspicuous, unless the circumstances, including course of performance, course of dealing, or usage of trade, give the lessee reason to know that the goods are being leased subject to a claim or interest of any person.

(10) "Conspicuous," with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following: (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

Subject to Subsection (3) , to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

Notwithstanding Subsection (2) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty;

when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

If a contract for the sale of livestock, which may include cattle, hogs, sheep, and horses, does not contain a written statement as to warranty of merchantability or fitness for a particular purpose, there shall be no implied warranty that the livestock are free from disease and sickness at the time of the sale and the seller shall not be liable for damages arising from the lack of merchantability or fitness for a particular purpose.

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence (Section 70A-2-202 ) negation or limitation is inoperative to the extent that such construction is unreasonable.

Section 70A-2-316, *1012 U.C.A.1953, requires that to exclude an implied warranty of “merchantability,” a disclaimer must be conspicuous, i. e. in larger or contrasting type or color. The reason for this provision is that it is the policy of the law to look with disfavor upon semi-concealed or obscured self-protective provisions of a contract prepared by one party, which the other is not likely to notice. We think it is a correct and salutary rule, that where there are provisions of this character in a contract, either buried in other provisions in fine print or are otherwise seimi-concealed or secreted in some manner, such as being found only by reference to ' the backside of the document, they should not be binding upon the signer (buyer) unless it is shown that the provision was actually called to his attention. 3 Notwithstanding the fact that the face of the contract contained the required reference to “merchantability,” the actual disclaimer was among other fine print provisions on the back thereof. Under the doctrine just set forth, in the absence of any evidence that this disclaimer was called to the plaintiffs’ attention, the defendant cannot insist that it be effective as a waiver.

To limit either warranties or remedies, however, the exclusionary language in the writing must be “conspicuous.” Code § 8.2-316(2). Whether a provision is conspicuous is a question of law for a court.

A provision is deemed to be conspicuous when “it is so written that a reasonable person against whom it is to operate ought to have noticed it.” Code § 8.1-201(10). For example, language con *566 tained in the body of an agreement is conspicuous if it is written in “larger or other contrasting type or color.” Id.

In addition, in every contract for the sale of a new dwelling, the vendor, if he is in the business of building or selling such dwellings, shall be held to warrant to the vendee that, at the time of transfer of record title or the vendee's taking possession, whichever occurs first, the dwelling together with all of its fixtures is sufficiently (i) free from structural defects, so as to pass without objection in the trade; (ii) constructed in a workmanlike manner, so as to pass without objection in the trade; and (iii) fit for habitation.

D. The warranties described in subsections B and C implied in the contract for sale shall be held to survive the transfer of title. Such warranties are in addition to, and not in lieu of, any other express or implied warranties pertaining to the dwelling or its materials or fixtures. A contract for sale may waive, modify, or exclude any or all express and implied warranties and sell a new home "as is" only if the words used to waive, modify, or exclude such warranties are conspicuous, as defined by subdivision (b)(10) of § 8.1A-201 , set forth on the face of such contract in capital letters that are at least two points larger than the other type in the contract and only if the words used to waive, modify, or exclude the warranties state with specificity the warranty or warranties that are being waived, modified, or excluded. If all warranties are waived or excluded, a contract shall specifically set forth in capital letters that are at least two points larger than the other type in the contract that the dwelling is being sold "as is."

A buyer can show that a contract of sale was induced by the seller’s fraud, notwithstanding the fact the sale was made “as is”. 1 R. Anderson, Uniform Commercial Code § 2-316:35 (2d. ed. 1970). The same is true even though the written contract contains covenants waiving warranties or disclaiming or limiting liabilities.

B. In every contract for the sale of a new dwelling, the vendor shall be held to warrant to the vendee that, at the time of the transfer of record title or the vendee's taking possession, whichever occurs first, the dwelling with all of its fixtures is, to the best of the actual knowledge of the vendor or his agents, sufficiently (i) free from structural defects, so as to pass without objection in the trade, and (ii) constructed in a workmanlike manner, so as to pass without objection in the trade.

E. If there is a breach of warranty under this section, the vendee, or his heirs or personal representatives in case of his death, shall have a cause of action against his vendor for damages, provided, however, for any defect discovered after July 1, 2002, such vendee shall first provide the vendor, by certified mail at his last known address, or by commercial overnight delivery service or the United States Postal Service, and a receipt obtained, a written notice stating the nature of the warranty claim. Such notice also may be hand delivered to the vendor with the vendee retaining a receipt of such hand-delivered notice to the vendor or its authorized agent. After such notice, the vendor shall have a reasonable period of time, not to exceed six months, to cure the defect that is the subject of the warranty claim. F. The warranty shall extend for a period of one year from the date of transfer of record title or the vendee's taking possession, whichever occurs first, except that the warranty pursuant to clause (i) of subsection C for the foundation of new dwellings shall extend for a period of five years from the date of transfer of record title or the vendee's taking possession, whichever occurs first. Any action for its breach shall be brought within two years after the breach thereof. For all warranty claims arising on or after January 1, 2009, sending the notice required by subsection E shall toll the limitations period for six months.

This brings us to the central issue in this appeal: whether the provisions of the U.C.C. or Code § 11-4 2 govern the type-size requirements for the contract. As previously noted, the U.C.C. requires only that the excluding language be conspicuous, Code § 8.2-316(2), and language is conspicuous when it is written in larger type, Code § 8.1-201(10). Because the excluding language *567 in the contract is in larger type, we hold as a matter of law that it is conspicuous. The type size, however, does not meet the requirements of Code § 11-4 which was in effect prior to the U.C.C. For this reason, the trial court ruled that the exclusions were unenforceable. We hold that the court erred. Under the facts of this case, Code § 11-4 is inconsistent with the U.C.C. provision requiring that a limiting term or clause need be only conspicuous. Thus, the provisions of Code § 11-4 do not apply to this U.C.C. transaction. See Code § 8.10-103.

We conclude, therefore, that because the limiting language of the contract was conspicuous within the meaning of the U.C.C., the court erred in submitting the issues of express and implied warranties to the jury. Accordingly we will reverse the judgment of the trial court and enter final judgment for Armco.

No contract in writing entered into between a citizen of this Commonwealth and any person, firm, company or corporation, domestic or foreign, doing business in this Commonwealth, for the sale and future delivery of any goods or chattels, machinery or mechanical devices, or personal property of any kind or sort whatsoever, shall be binding upon the purchaser, where the form is printed and furnished by the person, firm, company or corporation, unless all of the provisions of such contract are clearly and plainly printed or written; and, where printed, such provisions and covenants and all stipulations as to the rights of the vendor shall be in type of not less than the size known as ten point; and, wherever in such contract, printed upon a form furnished by the vendor, it is stipulated that the vendor is not to be bound by any verbal agreement or modification of the terms of such printed contract, then such stipulation shall be printed as a separate paragraph or paragraphs and in type not smaller than pica.

We hold that the trial court erred in entering summary judgment on the pleadings, and we will reverse the judgment order and remand the case for a trial on the merits.

A. As used in this section: "New dwelling" means a dwelling or house that has not previously been occupied for a period of more than 60 days by anyone other than the vendor or the vendee or that has not been occupied by the original vendor or subsequent vendor for a cumulative period of more than 12 months, excluding dwellings constructed solely for lease. "New dwelling" does not include a condominium or condominium units created pursuant to the Virginia Condominium Act (§ 55.1-1900 et seq.). "Structural defects" means a defect or defects that reduce the stability or safety of the structure below accepted standards or that restrict the normal use of the structure.

We are, therefore, of the opinion that, in the sale by a dealer or retailer of a brand new automobile, the dealer impliedly warrants that the automobile is of merchantable quality and that the new car is fit to transport the driver and his passengers with reasonable safety, efficiency and comfort — according to the size, model and power of the vehicle. Waivers of such warranties, being disfavored in law, are ineffectual unless explicitly negotiated between buyer and seller and set forth with particularity showing the particular qualities and characteristics of fitness which are being waived.

According to the decision in Berg , warranty disclaimers in a contract must be both (1) explicitly negotiated and (2) set forth with particularity. Id. at 196 . The presumption leans against the warranty disclaimer, and the burden lies on the party seeking to include the disclaimer to prove its legality.

In American Nursery this court made another modification and extension of the Berg/Schroeder analysis. In that case we confirmed the use of the two-prong Berg analysis for consumer transactions involving warranty disclaimers and in commercial transactions for the sale of goods where there is sufficient evidence of unfair surprise. 115 Wn.2d at 223-24 . We thus also confirmed the Schroeder totality of the circumstances analysis for clauses excluding (or limiting) *440 liability for consequential damages in commercial transactions for services where there is insufficient evidence of unfair surprise. Id. at 222-23

Nearly 40 separately listed items — handwritten in pen and ink on the same order form — described and priced the items of extra optional equipment to be added to the car, these running from a vanity mirror at $1.45 to air conditioning at $430.40, with such in-between devices as power brakes, $43; wind deflector, $26.90; power seat, $96.84; tilt steering, $43.04.

Reversed and remanded to the trial court to try the issue of damages, i.e., to ascertain and grant the plaintiff judgment for the difference between the price paid and its fair market value in its delivered condition.

We thus hold, as a matter of law, that the totality of the circumstances support the conscionability and enforceability of the liability limitation clause in the contract for services between Factors and Unisearch. We reverse the Court of Appeals decision and affirm the trial court’s grant of summary judgment limiting Unisearch’s liability, if any, to the amount of the fee charged for its service.

Accordingly, we are of the view that the trial court was in error in concluding that this sale fell within that provision of the Uniform Sales Act (RCW 63.04.160) which states that there is no warranty of fitness in the sale of a specified article under its patent or other trade name.

Neill, J. (concurring) — I concur in the result but have not signed the majority opinion as I believe it is inappropriate to commingle considerations regarding the application of the parol evidence rule to implied warranties of *197 contract with considerations pertaining to the strict tort liability of a manufacturer. Further, the conclusion that waivers are ineffectual “unless explicitly negotiated between buyer and seller and set forth with particularity showing the particular qualities and characteristics of fitness which are being waived” is too restrictive. A rule which requires proof by a preponderance of the evidence that the purchaser was specifically made aware that he was waiving warranties is sufficient to protect the buyer from surprise without unduly restricting freedom of contract. This also comports with the current statutory law of sales. RCW 62A.2-202; RCW 62A.2-316. See Broude, The Consumer and the Parol Evidence Rule: Section 2-202 of the Uniform Commercial Code, 5 Duke L.J. 881 (1970). Stafford and McGovern, JJ., concur with Neill, J.

Subject to sub. (3) , to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”

Notwithstanding sub. (2) , all of the following apply: 402.316(3)(a) (a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.

When the buyer before entering into the contract has examined the goods or the sample or model as fully as the buyer desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to the buyer.

Except as provided in s. 95.195 , there is no implied warranty that cattle, hogs, sheep or horses are free from sickness or disease at the time a sale is consummated if all state and federal regulations pertaining to animal health are complied with by the seller, unless the seller knows at the time a sale is consummated that the cattle, hogs, sheep or horses were sick or diseased.

An implied warranty can be excluded or modified by course of dealing or course of performance or usage of trade.

" (4) Remedies for breach of warranty can be limited in accordance with ss. 402.718 and 402.719 on liquidation or limitation of damages and on contractual modification of remedy."