Does our 'AS IS' or 'no warranties' language actually disclaim the implied warranties?
Wis. Stat. § 402.316(2) provides that, subject to sub. (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and, in the 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; and that 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.' Subsection (3)(a) then provides that, 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.
The trap
The two subsections pull in different directions and (3) wins where it applies, and both halves of that are in the text: subsection (2) is expressly 'Subject to sub. (3)' and subsection (3) opens 'Notwithstanding sub. (2)', so 'as is' can carry a disclaimer that would fail subsection (2)'s mention-merchantability and conspicuousness tests, but only 'unless the circumstances indicate otherwise', which is a fact question, not a drafting one. Subsection (3) contains three more routes a seller may not have noticed: a buyer who has examined the goods, the sample or the model as fully as desired, or who has refused to examine them, gets no implied warranty as to defects an examination ought to have revealed; an implied warranty can be excluded or modified by course of dealing, course of performance or usage of trade; and para. (c) has a livestock rule of its own for cattle, hogs, sheep and horses, subject to s. 95.195. One thing this section does not do is limit the remedy. Subsection (4) sends that elsewhere: as the Supreme Court of Wisconsin set the subsection out, remedies for breach of warranty can be limited in accordance with ss. 402.718 and 402.719, on liquidation or limitation of damages and on contractual modification of remedy, so a disclaimer that fails under this section is a different question from a remedy cap that stands or falls under those.
6 authorities
- statuteWis. Stat. § 402.316enactment date not established
The words that state the rule
Subject to sub. (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.”
- statuteWis. Stat. § 402.316enactment date not established
The words that state the rule
Notwithstanding sub. (2) , all of the following apply: 402.316(3)(a) (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.
- statuteWis. Stat. § 402.316enactment 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 the 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 the buyer.
- statuteWis. Stat. § 402.316enactment date not established
The words that state the rule
Except as provided in s. 95.195 , there is no implied warranty that cattle, hogs, sheep or horses are free from sickness or disease at the time a sale is consummated if all state and federal regulations pertaining to animal health are complied with by the seller, unless the seller knows at the time a sale is consummated that the cattle, hogs, sheep or horses were sick or diseased.
- statuteWis. Stat. § 402.316enactment date not established
The words that state the rule
An implied warranty can be excluded or modified by course of dealing or course of performance or usage of trade.
The words that state the rule
" (4) Remedies for breach of warranty can be limited in accordance with ss. 402.718 and 402.719 on liquidation or limitation of damages and on contractual modification of remedy."
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.