Does our 'AS IS, NO WARRANTIES' language actually disclaim the implied warranties?
R.C. 1302.29(B), as the Fourth District set it out, provides that, subject to division (C) of the section, 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 (Caterpillar Financial Services). R.C. 1302.27 supplies the implied warranty of merchantability - a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind, unless excluded or modified as provided in R.C. 1302.29 (Wright v. Harts Machine Services) - and R.C. 1302.28 the implied warranty of fitness, where the seller at the time of contracting has reason to know the particular purpose and that the buyer is relying on the seller's skill or judgment (Coliadis).
The trap
Division (B) is expressly 'Subject to division (C) of this section', and division (C) does most of the work in practice: unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like 'as is' or 'with all faults', or other language that in common understanding calls the buyer's attention to the exclusion and makes plain there is no implied warranty (division (C)(1)); and where the buyer has examined the goods as fully as desired, or refused to examine them, there is no implied warranty as to defects an examination ought to have revealed (division (C)(2)) (Lysogorski). So 'as is' can disclaim without mentioning merchantability at all, and the division (B) requirements are not the only route. Note also that division (B) is quoted with an elision, and that the court that set it out decided the case on privity and expressly declined to reach the disclaimer question. The second trap is not about the wording at all: Caterpillar Financial Services held the contract-based implied warranty claim failed for lack of privity, because longstanding Ohio jurisprudence provides that purchasers may assert a contract claim for breach of implied warranty only against parties with whom they are in privity, and in Ohio vertical privity exists only between immediate links in the distribution chain. A manufacturer selling through a dealer may therefore never need the disclaimer, and a disclaimer in the manufacturer's paperwork may never reach the buyer's contract.
8 authorities
- case2015-Ohio-4884Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son's Ents., Inc.Ohio Ct. App. 4th Dist.decided 2015
The words that state the rule
R.C. 1302.29(B) governs disclaimers of warranty. It provides: (B) Subject to division (C) of this section, 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. * * *
- case2015-Ohio-4884Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son's Ents., Inc.Ohio Ct. App. 4th Dist.decided 2015
The words that state the rule
“[L]ongstanding Ohio jurisprudence provides that purchasers * * * may assert a contract claim for breach of implied warranty only against parties with whom they are in privity.” Curl v. Volkswagen of Am., Inc., 114 Ohio St.3d 266, 2007- Ohio-3609, 871 N.E.2d 1141, ¶ 26
- case2015-Ohio-4884Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son's Ents., Inc.Ohio Ct. App. 4th Dist.decided 2015
The words that state the rule
Here, Tatman and Son’s is not in privity with Vermeer because, in Ohio, vertical privity exists only between immediate links in the distribution chain. Curl at ¶ 32.
- case2015-Ohio-4884Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son's Ents., Inc.Ohio Ct. App. 4th Dist.decided 2015
The words that state the rule
R.C. 1302.27, implied warranty of merchantability, and R.C. 1302.28, implied warranty of fitness for a particular purpose, governs UCC contract claims for breach of implied warranty.
- case2015-Ohio-4884Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son's Ents., Inc.Ohio Ct. App. 4th Dist.decided 2015
The words that state the rule
Furthermore, because the lack of privity is dispositive of this issue, we decline to reach the issue of disclaimer of implied warranties under R.C. 1302.29(B). The trial court did not err in dismissing count two of the complaint insofar as it advances a claim for breach of implied warranty under contract law.
- case2024-Ohio-1943Lysogorski v. Minerva Motors, L.L.C.Ohio Ct. App. 7th Dist.decided 2024
The words that state the rule
The sale of goods in Ohio may entail both express and implied warranties, including the implied warranty that the goods “are fit for the ordinary purposes for which such goods are used.” R.C. 1302.27(B)(3); Raze Internatl., Inc. v. Southeastern Equip. Co., Inc., 2016-Ohio-5700, 69 N.E.3d 1274, ¶ 26 (7th Dist.). “[U]nless 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.” R.C. 1302.29(C)(1). Additionally, “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 Case No. 23 CA 0964 –9– with regard to defects which an examination ought in the circumstances to have revealed to him.” R.C. 1302.29(C)(2).
- case2016-Ohio-4758Wright v. Harts Machine Servs., Inc.Ohio Ct. App. 6th Dist.decided 2016
The words that state the rule
The implied warranty of merchantability is set forth in R.C. 1302.27, which provides, in relevant part: “(A) Unless excluded or modified as provided in section 1302.29 of the Revised Code, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.”
- case2016-Ohio-8522Coliadis v. Holko Enercon, Inc.Ohio Ct. App. 11th Dist.decided 2016
The words that state the rule
See R.C. 1302.28 (“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is * * * an implied warranty that the goods shall be fit for such purpose.”).
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.