Also known as:U.C.C. § 2-316 · Uniform Commercial Code § 2-316 · UCC 2-316 · warranty disclaimer · exclusion of warranties · modification of warranties
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule permitting a seller to exclude all implied warranties by using expressions such as as is or with all faults that in common understanding call the buyer's attention to the exclusion and make plain that no implied warranty exists unless the circumstances indicate otherwise.
Sources & Authorities
How it applies
Common Examples
3
Surplus Tooling Sale With As Is Clause
Valley Flight sold used precision tooling to Bright Space under a written agreement that displayed the bold capitalized phrase TOOLING SOLD AS IS WITH ALL FAULTS directly above the signature lines. Bright Space later discovered that the tooling was worn beyond tolerances and could not meet production rates. The as is language called the buyer's attention to the exclusion of warranties and made plain that no implied warranty existed so the court granted summary judgment for Valley Flight.
Software License With Box Top Terms
ProCD sold software to Zeidenberg who purchased a consumer package containing a box top license that disclaimed all implied warranties. Zeidenberg used the software in a manner that violated the license terms and later claimed breach of the implied warranty of merchantability. The court held that the box top language operated as an effective disclaimer because it plainly notified the buyer that no implied warranties accompanied the sale.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Casebooks
Hornbooks
Study Supplements
ProCD, Inc. v. Zeidenberg86 F.3d 1447 (7th Cir. 1996)
Automobile Sale With Warranty Disclaimer
Bloomfield Motors sold a new car to Henningsen under a contract that contained a clause disclaiming all implied warranties. The car suffered a steering defect that caused an accident shortly after delivery. The court refused to enforce the disclaimer because the circumstances including the consumer context and the seller's superior knowledge indicated that the parties did not intend a total elimination of quality assurances.
When does an as is clause fail to exclude implied warranties under UCC § 2-316(3)(a)?+
The clause fails when surrounding circumstances such as prior seller representations indicate that the parties did not intend a complete disclaimer. Courts examine pre-contract communications and the overall transactional context to determine whether the statutory qualification applies.
Supporting sources
Must an as is disclaimer mention merchantability to be effective?+
No. Unlike subsection (2) the general as is formulation in subsection (3)(a) excludes both the implied warranty of merchantability and the implied warranty of fitness without requiring specific mention of merchantability.
Supporting sources
Does conspicuous presentation alone guarantee enforcement of a warranty disclaimer?+
No. Conspicuousness satisfies one requirement but the disclaimer still must satisfy the common understanding test and must not be negated by circumstances indicating a contrary intention.
Supporting sources
How do courts treat additional warranty disclaimers added in a merchant confirmation?+
A broad disclaimer of implied warranties is treated as a proposal that does not become part of the contract if it materially alters the bargain or if the other merchant objects within a reasonable time.
Supporting sources
939 F.2d 91 (3d Cir. 1991)Contracts
…when Step-Saver opened each package. Third, TSL argues that, however the contract was formed, Step-Saver was aware of the warranty disclaimer, and that Step-Saver, by continuing to order and accept the product with knowledge of the disclaimer, assented to the disclaimer. In analyzing these competing arguments, we first consider…