Does this 'all warranties disclaimed' language actually disclaim the implied warranty of merchantability?
Not on its own. 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 by a writing and conspicuous, and language excluding 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.' Notwithstanding all of that, § 2.316(c)(1) excludes all implied warranties by expressions like 'as is' or 'with all faults', unless the circumstances indicate otherwise. Three more things the section does. Under (a), words creating an express warranty and words negating warranty are construed as consistent wherever reasonable, and the negation is inoperative to the extent that construction is unreasonable: a disclaimer does not cancel an express warranty. Under (c)(2)-(3), a buyer who examined the goods as fully as desired, or refused to, gets no implied warranty for defects the examination should have revealed, and an implied warranty can be excluded by course of dealing, course of performance or usage of trade. Under (d), remedies for breach of warranty can be limited under §§ 2.718 and 2.719.
The trap
A sweeping a clause that says only that all warranties, express and implied, are disclaimed can fail as to merchantability precisely because it never says the word merchantability (the statute demands the term, not the concept), and it cannot override an express warranty wherever reading the two together is reasonable: (a) makes the negation inoperative only 'to the extent that such construction is unreasonable', because (a) makes the negation inoperative where reading the two together is unreasonable. A goods sale under Chapter 2 and an equipment lease under Chapter 2A are different sections, and the lease rule is stricter in three concrete ways: under § 2A.214(b) a merchantability disclaimer must mention 'merchantability', be by a WRITING, and be conspicuous (Chapter 2 permits an oral one); the lease safe-harbour sentence for fitness must itself be 'in writing, is conspicuous' where § 2.316(b)'s need not be; and under § 2A.214(c)(1) even 'as is' or 'with all faults' works only 'if in writing and conspicuous', where § 2.316(c)(1) has no writing requirement. The lease exclusions are also expressly 'subject to Subsection (d)', the interference-and-infringement rule, which has no analogue in § 2.316. A disclaimer drafted for one does not answer the other.
3 authorities
- statuteTex. Bus. & Com. Code § 2.316enacted 1967-09-01
The words that state the rule
(a) 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 (Section 2.202 ) negation or limitation is inoperative to the extent that such construction is unreasonable. (b) Subject to Subsection (c), 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." (c) Notwithstanding Subsection (b) (1) 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 (2) 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 (3) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade. (d) 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 (Sections 2.718 and 2.719 ).
- statuteTex. Bus. & Com. Code § 2A.214enacted 1993-09-01
The words that state the rule
(b) Subject to Subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention "merchantability," be by a writing, and be conspicuous. Subject to Subsection (c), to exclude or modify an implied warranty of fitness the exclusion must be by a writing and be conspicuous. Language to exclude all implied warranties of fitness is sufficient if it is in writing, is conspicuous and states, for example, "There is no warranty that the goods will be fit for a particular purpose." (c) Notwithstanding Subsection (b), but subject to Subsection (d): (1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," or "with all faults," or by other language that in common understanding calls the lessee's attention to the exclusion of warranties and makes plain that there is no implied warranty, if in writing and conspicuous; (2) if the lessee before entering into the lease contract has examined the goods or the sample or model as fully as desired or has refused to examine the goods, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed; and (3) an implied warranty also may be excluded or modified by course of dealing, course of performance, or usage of trade. (d) To exclude or modify a warranty against interference or against infringement (Section 2A.211 ) or any part of it, the language must be specific, be by a writing, and be conspicuous, unless the circumstances, including course of performance, course of dealing, or usage of trade, give the lessee reason to know that the goods are being leased subject to a claim or interest of any person.
- statuteTex. Bus. & Com. Code § 1.201enacted 2022-06-01
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.