“Disclaim” and “Disclaimer”

What do disclaim and disclaimer mean for purposes of contracts?

Here’s the Black’s Law Dictionary definition of disclaimer:

disclaimer, n. (15c) 1. A renunciation of one’s legal right or claim; esp., a renunciation of a patent claim, usu. to save the remainder of the application from being rejected. 2. A repudiation of another’s legal right or claim. 3. A writing that contains such a renunciation or repudiation. 4. RENUNCIATION (2). — disclaim, vb.

OK, but how are disclaim and disclaimer used in contracts?

It’s relevant that section 2–316 of the Uniform Commercial Code refers to what’s required to “exclude or modify” warranties. It doesn’t use disclaim or disclaimer. When in a contract a party disclaims something (usually warranties), usually a simpler and clearer alternative is available. Here are some examples:

The Agent Parties do not warrant the accuracy or completeness of the Communications and expressly disclaim liability [read will not be liable] for errors or omissions in the Communications.

None of the Agents nor any of its respective officers, directors, partners, employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy, or completeness of the E-System and each expressly disclaims liability [read will not be liable] for errors or omissions in the E-System.

In connection with the Buyer’s purchase of units of any Product under this agreement, the Vendor (1) disclaims [read is not making] any warranty of merchantability and (2) is making no warranty other than the warranty of title and the warranties expressed in this agreement.

(See also MSCD 12.433 and this January 2007 blog post on AdamsDrafting regarding use of the verb to warrant. )

But disclaim and disclaimer are less objectionable if you’re referring to some other document:

This clause 14 and the obligations of the Guarantor under the Transaction Documents are absolute, binding and unconditional in all circumstances, and are not released or discharged or otherwise affected by anything which but for this provision might have that effect, including: … (20) any disclaimer by any Transaction Party or any other person of any Transaction Document or any other document or agreement; …

At any sale of the Collateral, if permitted by law, Lender may bid (which bid may be, in whole or in part, in the form of cancellation of indebtedness) for the purchase of the Collateral or any portion thereof for the account of Lender and/or disclaim all warranties.