Will our 'AS IS, no implied warranties' disclaimer work in New Jersey?
For a sale of goods, only if it is written the way § 12A:2-316 requires: 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 an implied warranty of fitness the exclusion must be in a conspicuous writing. "Conspicuous" is defined: 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", and whether a term is conspicuous is a decision for the court (§ 12A:1-201(10)). Expressions like 'as is' or 'with all faults' exclude all implied warranties unless the circumstances indicate otherwise, as do a buyer's examination or refusal to examine the goods and course of dealing, course of performance or usage of trade. Even a compliant disclaimer is read against the seller: Henningsen, decided in 1960 under the Uniform Sales Act a year before New Jersey enacted the UCC, said that disclaimers or limitations of the obligations that normally attend a sale "are not favored, and that they are strictly construed against the seller." Remedies for breach of warranty may be limited under the sections on liquidation and limitation of damages and contractual modification of remedy (§ 12A:2-316(4)). Where warranties conflict, express and implied warranties are construed as consistent and cumulative; if that is unreasonable the parties' intention decides which is dominant, and express warranties displace inconsistent implied warranties other than fitness for a particular purpose (§ 12A:2-317).
The trap
New Jersey announced the public-policy override in Henningsen, and it is still the drafting risk: Henningsen held an automaker's attempted disclaimer of the implied warranty of merchantability so inimical to the public good as to compel an adjudication of its invalidity, on facts (a standard-form consumer sale on a take-it-or-leave-it basis) that recur constantly. A disclaimer can therefore satisfy every formal requirement of § 12A:2-316 and still fail in a consumer setting through unconscionability (§ 12A:2-302) or the Rudbart adhesion factors. TCCWNA is narrower than drafters assume: § 56:12-16 voids a consumer-contract term by which the consumer waives rights under that Act, and its rule against stating that provisions are "void, unenforceable or inapplicable in some jurisdictions" expressly "shall not apply to warranties". Note too the interaction § 12A:2-316(1) makes explicit: words creating an express warranty and words negating warranty are construed as consistent where reasonable, and the negation is INOPERATIVE to the extent that construction is unreasonable, so an 'as is' line cannot take back a specification or a datasheet promise made elsewhere in the same deal.
11 authorities
- statuteN.J. Stat. Ann. § 12A:2-316enactment 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." (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 (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.
The words that state the rule
It must be noted, however, that the sections of the Sales Act, to which reference has been made, do not impose warranties in terms of unalterable absolute's. B. S. 46:30—3 provides in general terms that an applicable warranty may be negatived or varied by express agreement. As to disclaimers or limitations of the obligations that normally attend a sale, it seems sufficient at this juncture to say they are not favored, and that they are strictly construed against the seller.
- statuteN.J. Stat. Ann. § 12A:2-316enactment 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 (12A:2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
- statuteN.J. Stat. Ann. § 12A:2-316enactment 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 (12A:2-718 and 2-719).
- statuteN.J. Stat. Ann. § 12A:2-317enactment date not established
The words that state the rule
Warranties whether express or implied shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant. In ascertaining that intention the following rules apply: (a) Exact or technical specifications displace an inconsistent sample or model or general language of description. (b) A sample from an existing bulk displaces inconsistent general language of description. (c) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.
- statuteN.J. Stat. Ann. § 56:12-16enactment date not established
The words that state the rule
No consumer contract, warranty, notice or sign, as provided for in this act, shall contain any provision by which the consumer waives his rights under this act. Any such provision shall be null and void. No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey; provided, however, that this shall not apply to warranties.
The words that state the rule
In the framework of this case, illuminated as it is by the facts and the many decisions noted, we are of the opinion that Ohrysler’s attempted disclaimer of an implied warranty of merchantability and of the obligations arising therefrom is so inimical to the public good as to compel an adjudication of its invalidity.
The words that state the rule
The warranty before us is a standardized form designed for mass use. It is imposed upon the automobile consumer. He takes it or leaves it, and he must take it to buy an automobile. No bargaining is engaged in with respect to it. In fact, the dealer through whom it comes to the buyer is without authority to alter it; his function is ministerial—simply to deliver it.
- statuteN.J. Stat. Ann. § 12A:2-302enactment date not established
The words that state the rule
(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.
- case127 N.J. 344Rudbart v. North Jersey District Water Supply CommissionN.J.decided 1992read it at the source ↗
The words that state the rule
Because the contract "[did] not result from the [worker's] consent," we invalidated its "unconscionable" eviction provision. Id. at 104 , 415 A. 2d 1156 ; see also Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575 , 111 A. 2d 425 (App.Div. 1955) (lease provision exculpating residential landlord from liability held contrary to public policy). Thus, in determining whether to enforce the terms of a contract of adhesion, courts have looked not only to the take-it-or-leave-it nature or the standardized form of the document but also to the subject matter of the contract, the parties' relative bargaining positions, the degree of economic compulsion motivating the "adhering" party, and the public interests affected by the contract. Applying those criteria to the project notes, we find insufficient reason to invalidate the notice-by-publication term.
- statuteN.J. Stat. Ann. § 12A: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.