What does a Utah disclaimer of implied warranties in a sale of goods need to say?
Subject to subsection (3), to exclude or modify the implied warranty of merchantability the language must mention merchantability and, in a writing, must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous (§ 70A-2-316(2)). 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 of the document. Words or conduct creating an express warranty and words or conduct tending to negate or limit warranty are construed wherever reasonable as consistent with each other, and, subject to the chapter's parol evidence section, the negation or limitation is inoperative to the extent that construction is unreasonable (§ 70A-2-316(1)). Notwithstanding subsection (2), unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like 'as is', '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 (§ 70A-2-316(3)(a)).
The trap
Two routes, two sets of requirements: a merchantability disclaimer must name merchantability and (in writing) be conspicuous, while an 'as is' or 'with all faults' clause can exclude all implied warranties without naming them, unless the circumstances indicate otherwise. Examination of the goods before contracting also removes implied warranties as to defects an examination ought to have revealed, and course of dealing, performance or usage of trade can exclude them. Conspicuous has teeth. In Christopher v. Larson Ford Sales the Utah Supreme Court read § 70A-2-316 as requiring a merchantability disclaimer to be conspicuous, that is, in larger or contrasting type or color, and held that a disclaimer sitting among other fine print on the back of the contract did not bind the buyer in the absence of evidence that it was actually called to his attention, even though the face of the contract carried the required reference to merchantability. Utah adds a livestock rule: absent a written statement on merchantability or fitness, there is no implied warranty that livestock are free from disease at sale.
6 authorities
- statuteUtah Code § 70A-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."
- statuteUtah Code § 70A-2-316enactment date not established
The words that state the rule
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 of warranties and makes plain that there is no implied warranty;
- statuteUtah Code § 70A-2-316enactment date not established
The words that state the rule
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 an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
- statuteUtah Code § 70A-2-316enactment date not established
The words that state the rule
If a contract for the sale of livestock, which may include cattle, hogs, sheep, and horses, does not contain a written statement as to warranty of merchantability or fitness for a particular purpose, there shall be no implied warranty that the livestock are free from disease and sickness at the time of the sale and the seller shall not be liable for damages arising from the lack of merchantability or fitness for a particular purpose.
- statuteUtah Code § 70A-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 chapter on parol or extrinsic evidence (Section 70A-2-202 ) negation or limitation is inoperative to the extent that such construction is unreasonable.
The words that state the rule
Section 70A-2-316, *1012 U.C.A.1953, requires that to exclude an implied warranty of “merchantability,” a disclaimer must be conspicuous, i. e. in larger or contrasting type or color. The reason for this provision is that it is the policy of the law to look with disfavor upon semi-concealed or obscured self-protective provisions of a contract prepared by one party, which the other is not likely to notice. We think it is a correct and salutary rule, that where there are provisions of this character in a contract, either buried in other provisions in fine print or are otherwise seimi-concealed or secreted in some manner, such as being found only by reference to ' the backside of the document, they should not be binding upon the signer (buyer) unless it is shown that the provision was actually called to his attention. 3 Notwithstanding the fact that the face of the contract contained the required reference to “merchantability,” the actual disclaimer was among other fine print provisions on the back thereof. Under the doctrine just set forth, in the absence of any evidence that this disclaimer was called to the plaintiffs’ attention, the defendant cannot insist that it be effective as a waiver.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.