Comments on: “Warranty” http://www.adamsdrafting.com/2007/01/24/warranty/ Thu, 18 Mar 2010 12:12:39 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Cyberlaw Central » Blawg Review #93 http://www.adamsdrafting.com/2007/01/24/warranty/comment-page-1/#comment-2153 Cyberlaw Central » Blawg Review #93 Mon, 29 Jan 2007 07:54:23 +0000 http://www.adamsdrafting.com/2007/01/24/warranty/#comment-2153 [...] Ken Adams presents “Warranty” posted at AdamsDrafting. In this post, Ken examines the word Warrants and takes issue with its use in legal drafting. Good reading before drafting your next contract. [...] [...] Ken Adams presents “Warranty” posted at AdamsDrafting. In this post, Ken examines the word Warrants and takes issue with its use in legal drafting. Good reading before drafting your next contract. [...]

]]> By: Ken Adams http://www.adamsdrafting.com/2007/01/24/warranty/comment-page-1/#comment-2057 Ken Adams Wed, 24 Jan 2007 20:28:18 +0000 http://www.adamsdrafting.com/2007/01/24/warranty/#comment-2057 Michael: I tried to indicate in the last part of my post that compared to the verb <em>to warrant</em>, I find the noun <em>warranty</em> relatively unobjectionable. I just don't know how often one would really need to use it in a contract to refer to parts of that contract. Ken Michael: I tried to indicate in the last part of my post that compared to the verb to warrant, I find the noun warranty relatively unobjectionable. I just don’t know how often one would really need to use it in a contract to refer to parts of that contract. Ken

]]> By: Michael Fleming http://www.adamsdrafting.com/2007/01/24/warranty/comment-page-1/#comment-2054 Michael Fleming Wed, 24 Jan 2007 17:55:40 +0000 http://www.adamsdrafting.com/2007/01/24/warranty/#comment-2054 I went back to UCC Article 2 to see whether there is an absolute requirement therein to use the Adams-disfavored word WARRANTY when disclaiming either of the implied warranties under Article 2 (i.e., those of merchantability and fitness for a particular purpose). As we all know, the usual construction of that disclaimer is (to be rendered in all CAPS in reality, but to save my eyes I'm not doing that today): "Seller hereby disclaims any implied warranties in the Goods including any implied warranties of merchantability or fitness for a particular purpose." What surprised me was to see that neither old Article 2 or new Article 2 required the use of the particular phrasing above. New Article 2 (since 2003 or thereabout) merely says that to 'exclude' the implied warranty of merchantability it is sufficient to state (in writing and 'conspicuously'): "The seller undertakes no responsbility for the quality of the goods except as otherwise provided in this contract." If it's non-consumer agreement, the writing must 'mention' MERCHANTABILITY. (There is a similar phrasing for excluding an implied warranty of fitness for a particular purpose.) (Those quoted phrases of exclusion were put into the model act in the 2003 amendments to § 2-316. But, the idea that the words IMPLIED WARRANTY had to be part of the disclaiming language was a myth even under old Article 2.) So, for what it's worth, the drafters of Article 2 seem to support Adams' assertion regarding the necessity of using the word WARRANTY -- Even in the one instance I (mistakenly) thought it was required. I went back to UCC Article 2 to see whether there is an absolute requirement therein to use the Adams-disfavored word WARRANTY when disclaiming either of the implied warranties under Article 2 (i.e., those of merchantability and fitness for a particular purpose).

As we all know, the usual construction of that disclaimer is (to be rendered in all CAPS in reality, but to save my eyes I’m not doing that today): “Seller hereby disclaims any implied warranties in the Goods including any implied warranties of merchantability or fitness for a particular purpose.”

What surprised me was to see that neither old Article 2 or new Article 2 required the use of the particular phrasing above. New Article 2 (since 2003 or thereabout) merely says that to ‘exclude’ the implied warranty of merchantability it is sufficient to state (in writing and ‘conspicuously’): “The seller undertakes no responsbility for the quality of the goods except as otherwise provided in this contract.” If it’s non-consumer agreement, the writing must ‘mention’ MERCHANTABILITY. (There is a similar phrasing for excluding an implied warranty of fitness for a particular purpose.)

(Those quoted phrases of exclusion were put into the model act in the 2003 amendments to § 2-316. But, the idea that the words IMPLIED WARRANTY had to be part of the disclaiming language was a myth even under old Article 2.)

So, for what it’s worth, the drafters of Article 2 seem to support Adams’ assertion regarding the necessity of using the word WARRANTY — Even in the one instance I (mistakenly) thought it was required.

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