Is our 'AS IS, no warranties' language good in Kansas?
In a commercial sale, on the article 2 terms; in a consumer transaction, no. Under K.S.A. 84-2-316(2), and "Subject to subsection (3)", excluding or modifying the implied warranty of merchantability requires language that mentions merchantability and, in a writing, must be conspicuous, while excluding or modifying an implied warranty of fitness must be by a writing and conspicuous. "Conspicuous" is a defined term for the whole code: a term is conspicuous when it is "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 "is a decision for the court", and the definition lists as conspicuous a heading in capitals equal to or greater in size than the surrounding text or in contrasting type, font or colour, and language in the body of a record or display in larger or contrasting type, font or colour, or set off from surrounding text of the same size by symbols or other marks that call attention to it (K.S.A. 84-1-201(b)(10)). 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 and makes plain that there is no implied warranty; there is no implied warranty as to defects an examination ought to have revealed where the buyer examined or refused to examine the goods; and an implied warranty can be excluded or modified by course of dealing, course of performance or usage of trade (subsection (3)(a)-(c)). But with respect to property that is or is intended to become the subject of a consumer transaction in Kansas, no supplier shall exclude, modify or otherwise attempt to limit the implied warranties of merchantability and fitness for a particular purpose, and a disclaimer in violation of that section is void (K.S.A. 50-639(a)(1), (e)).
The trap
Kansas writes in two exclusions other states' article 2 does not. K.S.A. 84-2-316(3)(d) provides that with respect to the sale of livestock, other than for immediate slaughter, there shall be no implied warranties, except where the seller knowingly sells diseased livestock. And on the consumer side, K.S.A. 50-639 does not apply to seed for planting (subsection (g)), to sales of livestock for agricultural purposes other than for immediate slaughter except where the supplier knowingly sells diseased livestock (subsection (h)), or to a governmental entity's disposal of surplus property where conspicuous written notice of the limitation is given (subsection (i)). Two further points inside K.S.A. 50-639: a supplier may limit the implied warranties as to a specific defect only if it establishes that the consumer knew of the defect and that knowledge became the basis of the bargain, and never as to liability for personal injury or property damage (subsection (c)); and making a limited express warranty is not itself a violation (subsection (f)).
13 authorities
- statuteK.S.A. 84-2-316enactment date not established
The words that state the rule
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."
- statuteK.S.A. 84-2-316enactment 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," "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
- statuteK.S.A. 84-2-316enactment date not established
The words that state the rule
(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.
- statuteK.S.A. 84-2-316enactment 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 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.
- statuteK.S.A. 50-639enactment date not established
The words that state the rule
(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.
- statuteK.S.A. 50-639enactment date not established
The words that state the rule
(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.
- statuteK.S.A. 84-2-316enactment date not established
The words that state the rule
(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
- statuteK.S.A. 84-2-316enactment date not established
The words that state the rule
(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade
- statuteK.S.A. 50-639enactment date not established
The words that state the rule
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.
- statuteK.S.A. 50-639enactment date not established
The words that state the rule
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.
- statuteK.S.A. 50-639enactment date not established
The words that state the rule
(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.
- statuteK.S.A. 50-639enactment date not established
The words that state the rule
(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.
- statuteK.S.A. 84-1-201enactment date not established
The words that state the rule
(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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.