What does a Connecticut disclaimer of implied warranties need to say to work?
To exclude or modify the implied warranty of merchantability the language must mention merchantability and, in a writing, must be conspicuous; to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous (§ 42a-2-316(2) as quoted in Western Dermatology Consultants v. VitalWorks). The Connecticut Supreme Court held a finding of no implied warranty of merchantability 'adequately supported by the record' where the purchase order contained a provision expressly disclaiming it, 'conspicuously placed in large type on the reverse side of the purchase order', although the trial court had not expressly relied on the disclaimer, concluding only that 'We cannot say, therefore, that the court’s failure to find a breach of an implied warranty constituted reversible error' (Web Press Services v. New London Motors), and the Appellate Court held effective a software contract's disclaimer that named merchantability and fitness and was set entirely in capital letters, in contrast with the mixed-case provisions around it, concluding that 'Provision 9.2 of the contract, therefore, effectively disclaims the implied warranty of merchantability' (Western Dermatology). Subsection (2) is expressly subject to subsection (3), and two of subsection (3)'s routes out of an implied warranty are quoted by the Connecticut courts: under § 42a-2-316 (3) (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 under § 42a-2-316 (3) (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' (both as quoted in Chamberlain v. Bob Matick Chevrolet, Inc., the ellipsis being the court's own).
The trap
A written disclaimer that does not mention merchantability, or is not conspicuous, does not meet the subsection (2) text quoted; the quoted text is expressly 'Subject to subsection (3)'. Web Press accepted a disclaimer on the reverse side of the purchase order that was 'conspicuously placed in large type'; it did not say which of placement or type size was decisive. Title 42a is not in our published statutes, so § 42a-2-316 reaches a reader only through the Connecticut decisions quoting § 42a-2-316: subsection (2) through Western Dermatology, and subsections (3) (a) and (3) (b) through Chamberlain. Chamberlain carries two cautions. It is a Circuit Court decision, and the Appellate Court said as much when it weighed the two, calling Web Press the more authoritative support because Web Press is a Supreme Court case and Chamberlain a Circuit Court case (Criscuolo v. Mauro Motors, Inc., Conn. App. 2000). And the Supreme Court confined Chamberlain to sales using an as-is expression: where the seller 'did not use an expression like' as-is, 'the trial court’s reliance on the Chamberlain decision was misplaced' (Web Press). The examination route is not automatic either: in Criscuolo the buyer knew of her right to an independent inspection of the car and declined it, and the court still found no exclusion under § 42a-2-316 (3) (b) 'because there was no assurance that a reasonable inspection under the circumstances at the time of sale would have uncovered the defect', a ruling the Appellate Court recited and left standing. Whether subsection (3) holds routes beyond those two was not read, and neither were the words Chamberlain elided from its subsection (3) (b) quotation.
8 authorities
- case203 Conn. 342Web Press Services Corp. v. New London Motors, Inc.Conn.decided 1987read it at the source ↗
The words that state the rule
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.
- case146 Conn. App. 169Western Dermatology Consultants, P.C. v. VitalWorks, Inc.Conn. App.decided 2013read it at the source ↗
The words that state the rule
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.’ ”
- case146 Conn. App. 169Western Dermatology Consultants, P.C. v. VitalWorks, Inc.Conn. App.decided 2013read it at the source ↗
The words that state the rule
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.
- case146 Conn. App. 169Western Dermatology Consultants, P.C. v. VitalWorks, Inc.Conn. App.decided 2013read it at the source ↗
The words that state the rule
“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.”
- case146 Conn. App. 169Western Dermatology Consultants, P.C. v. VitalWorks, Inc.Conn. App.decided 2013read it at the source ↗
The words that state the rule
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.”
- case4 Conn. Cir. Ct. 685Chamberlain v. Bob Matick Chevrolet, Inc.Conn. Cir. Ct.decided 1967read it at the source ↗
The words that state the rule
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 words that state the rule
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.
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.