Will this "AS IS" / warranty-disclaimer clause exclude Alaska's implied warranties?
Only if it satisfies AS 45.02.316's own form requirements, and those requirements are themselves subordinated to the "as is" route in subsection (c). Subject to (c), to exclude or modify the implied warranty of merchantability "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" (AS 45.02.316(b)). The same subsection gives a safe harbour for fitness alone: "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.'" Separately, "as is" language works on its own terms: "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" (AS 45.02.316(c)(1)).
The trap
Subsection (a) limits how far a disclaimer can cut against an EXPRESS warranty in the same contract: words negating or limiting a warranty are read together with the words creating it "where reasonable," but "negation or limitation is inoperative to the extent that such construction is unreasonable": a broad disclaimer cannot be stretched to silently swallow a specific express promise made elsewhere in the same document. Hayes v. Bering Sea Reindeer Products is the working example and it cuts both ways: "A seller cannot negate express warranties through generalized disclaimers," yet the specific clause there was enforced because it was "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," and its recital of an inspection opportunity "reflects NCI's actual conduct." Specificity, conspicuousness and a real inspection are what carried it. Subsection (c)(2) adds a distinct, conduct-based exclusion having nothing to do with the disclaimer's wording: if the buyer examined the goods (or a sample/model) as fully as desired before contracting, or refused to examine them, there is no implied warranty as to defects an examination "ought in the circumstances to have revealed." And subsection (d) is easy to conflate with this rule but is a different doctrine: remedies for breach of an UNexcluded warranty can still be separately limited under AS 45.02.718 and 45.02.719: a disclaimer under this section and a remedy-limitation clause under those sections are not the same protection and do not stand in for each other.
6 authorities
- statuteAS 45.02.316enactment date not established
The words that state the rule
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.”
- statuteAS 45.02.316enactment date not established
The words that state the rule
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.
- statuteAS 45.02.316enactment date not established
The words that state the rule
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.
- statuteAS 45.02.316enactment date not established
The words that state the rule
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).
The words that state the rule
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.
The words that state the rule
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.”
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.