Does this 'AS IS, NO WARRANTIES' disclaimer work in California?
For a non-consumer sale of goods, on the Commercial Code's terms: to exclude or modify the implied warranty of merchantability the language must mention merchantability and, in a writing, be conspicuous; to exclude implied warranty of fitness the exclusion must be in a conspicuous writing; and unless the circumstances indicate otherwise all implied warranties are excluded by expressions like 'as is' or 'with all faults' (Com. Code § 2316(2)-(3)(a)). For CONSUMER GOODS sold at retail in this state the Song-Beverly Consumer Warranty Act overrides that, where the Commercial Code's provisions conflict with the rights that chapter guarantees to buyers of consumer goods, "the provisions of this chapter shall prevail" (§ 1790.3): the implied warranties may not be waived at all, except by a sale on an 'as is' or 'with all faults' basis that strictly complies with the chapter (§ 1792.3); no such sale disclaims the implied warranties unless a CONSPICUOUS WRITING IS ATTACHED TO THE GOODS telling the buyer, before the sale and in simple and concise language, that the goods are sold as is, that the entire risk as to quality and performance is with the buyer, and that the buyer assumes the entire cost of servicing or repair (Civ. Code § 1792.4); a seller who gives an express warranty may not limit, modify or disclaim the implied warranties at all (§ 1793); and any waiver by the buyer of the chapter's provisions is contrary to public policy and void (§ 1790.1). Three more things § 2316 does on the commercial side: words creating an express warranty and words negating warranty are construed as consistent wherever reasonable, and the negation is inoperative to the extent that reading is unreasonable (§ 2316(1)); a buyer who examined the goods as fully as desired, or refused to, gets no implied warranty for defects the examination should have revealed, and an implied warranty can be excluded by course of dealing, course of performance or usage of trade (§ 2316(3)(b)-(c)); and remedies for breach can be limited under §§ 2718 and 2719 (§ 2316(4)).
The trap
The contract is the wrong place for a consumer disclaimer. Song-Beverly requires the notice to be a conspicuous writing ATTACHED TO THE GOODS and delivered before the sale, so an 'AS IS' paragraph in the purchase agreement (however conspicuous and however clearly it mentions merchantability) does not disclaim anything on a retail sale of new consumer goods within the chapter. Worse, giving any express warranty forecloses the disclaimer entirely under § 1793, so the warranty card and the disclaimer clause cancel each other out. On a mail-order sale the catalogue must carry the required writing for each item instead.
13 authorities
- statuteCal. Com. Code § 2316enactment date not established
The words that state the rule
(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).
- statuteCal. Civ. Code § 1792.4enactment date not established
The words that state the rule
(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.
- statuteCal. Civ. Code § 1793enactment date not established
The words that state the rule
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.
- statuteCal. Civ. Code § 1790.1enactment date not established
The words that state the rule
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.
- statuteCal. Civ. Code § 1792.3enactment date not established
The words that state the rule
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.
- statuteCal. Com. Code § 2316enactment date not established
The words that state the rule
(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.
- statuteCal. Civ. Code § 1792enactment date not established
The words that state the rule
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.
- statuteCal. Civ. Code § 1793.01enactment date not established
The words that state the rule
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.
- statuteCal. Civ. Code § 1792.5enactment date not established
The words that state the rule
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.
- statuteCal. Civ. Code § 1790.3enactment date not established
The words that state the rule
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.
- statuteCal. Civ. Code § 1791enactment date not established
The words that state the rule
(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.
- statuteCal. Civ. Code § 1792.1enactment date not established
The words that state the rule
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.
- statuteCal. Civ. Code § 1792.2enactment date not established
The words that state the rule
(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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.