Does this 'all warranties disclaimed' language actually disclaim the implied warranty of merchantability in Florida?
Only if it says merchantability. Under Fla. Stat. § 672.316(2), to exclude or modify the implied warranty of merchantability the language must mention merchantability, and in a writing it must be conspicuous; to exclude or modify an implied warranty of fitness the exclusion must be in a writing and conspicuous, and the subsection says in terms that 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.” 'Conspicuous' is not defined in this section: Fla. Stat. § 671.201(11) defines it as 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, and adds that whether a term is conspicuous is a decision for the court. Subsection (3) leaves the usual escapes: 'as is' or 'with all faults' language, the buyer's examination or refusal to examine, and course of dealing, course of performance or usage of trade.
The trap
Two non-uniform Florida paragraphs sit inside this section and change the answer for particular deals: § 672.316(3)(d) provides that in a transaction involving the sale of cattle or hogs there is no implied warranty that the animals are free from sickness or disease (unless the seller knowingly sells diseased animals), and subsections (5) and (6) declare that supplying whole blood, plasma, blood products and derivatives, and human tissue and organs for transplant, is the rendering of a SERVICE and not a sale, so the implied warranties do not apply at all. Remedies for breach of warranty are limited under §§ 672.718 and 672.719, not under this section. On the blood provision, two cautions from the Florida Supreme Court. It has described § 672.316(5) as a 'blood shield' statute enacted to limit the Uniform Commercial Code warranties by declaring such a sale a 'service', and held that there is no evidence the legislature intended that legal fiction to apply in any other context, so the service label does not carry over to other questions, and in that case it did not make the blood bank a provider of health care for the medical-malpractice limitations period. The earlier of the two decisions runs the other way on its own facts: in Rostocki the court said the service rule 'has also become the law in Florida with the passage of' § 672.316(5), but held the subsection was adopted after the cause of action arose, so under the law then in force the blood transaction was a sale of a product intended for human consumption and the producer was subject to strict liability; it quashed the District Court and remanded, over one dissent. And the subsection has been broadened since: the court's 1992 opinion reproduces the 1989 text, which withheld the implied warranties only 'as to a defect that cannot be detected or removed by a reasonable use of scientific procedures or techniques', whereas the published current text of (5) ends at 'are not applicable' with no such qualifier. Subsection (6), on human tissue and organs, still carries an undetectable-defect sentence of its own. Anyone relying on pre-amendment authority about (5) will import a limit the current text does not contain.
12 authorities
- statuteFla. Stat. § 672.316enactment 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 chapter on parol or extrinsic evidence (s. 672.202), negation or limitation is inoperative to the extent that such construction is unreasonable.
- statuteFla. Stat. § 672.316enactment date not established
The words that state the rule
(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.”
- statuteFla. Stat. § 671.201enactment date not established
The words that state the rule
(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.
- statuteFla. Stat. § 672.316enactment date not established
The words that state the rule
(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.
- statuteFla. Stat. § 672.316enactment date not established
The words that state the rule
(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).
- statuteFla. Stat. § 672.316enactment date not established
The words that state the rule
(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.
- statuteFla. Stat. § 672.316enactment date not established
The words that state the rule
(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.
- case601 So. 2d 1184Silva v. Southwest Florida Blood Bank, Inc.Fla.decided 1992-05-28read it at the source ↗
The words that state the rule
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.
- case601 So. 2d 1184Silva v. Southwest Florida Blood Bank, Inc.Fla.decided 1992-05-28read it at the source ↗
The words that state the rule
[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.
- case601 So. 2d 1184Silva v. Southwest Florida Blood Bank, Inc.Fla.decided 1992-05-28read it at the source ↗
The words that state the rule
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.
- case276 So. 2d 475Rostocki v. Southwest Florida Blood Bank, Inc.Fla.decided 1973-02-28read it at the source ↗
The words that state the rule
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.
- case276 So. 2d 475Rostocki v. Southwest Florida Blood Bank, Inc.Fla.decided 1973-02-28read it at the source ↗
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.