Excluding the Warranty of Title in Sales of Goods

Rarely do I have occasion to offer thoughts on drafting under article 2 of the Uniform Commercial Code, which applies to sales of goods.

Here are two warranty disclaimers from some equipment purchase agreements I’ve been reviewing:

NO OTHER WARRANTY TO CUSTOMER FROM SELLER IS EXPRESS OR IMPLIED. SELLER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE.

THE FOREGOING WARRANTIES … ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Both extracts disclaim all warranties other than those stated, then make a point of mentioning the warranty of merchantability and the warranty of fitness for a particular purpose.

Mentioning the warrant of merchantability makes sense, as section 2-316 of the UCC says that “to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability.” By contrast, section 2-316 says that you don’t have to refer by name to the warranty of fitness—it’s enough to say, for example, that “There are no warranties which extend beyond the description on the face hereof.”

But being more specific than strictly necessary isn’t much of a problem. Here’s what is a problem: these extracts make no mention of the warranty of title.

Section 2-312 of the UCC says “there is in a contract for sale a warranty by the seller that (a) the title conveyed shall be good, and its transfer rightful; and (b) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.” It goes on to say that the warranty of title “will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.”

So if disclaimer language proposes to exclude all warranties other than those stated in the contract but doesn’t mention the warranty of title, that disclaimer language is incorrect—it’s insufficient to exclude the warranty of title. And in the contracts that I’ve looked at recently that contain warranty disclaimer language, most don’t mention the warranty of title.

Failure to take into account the warranty of title would seem unlikely to result in, for example, a seller’s being unpleasantly surprised to find that it had in fact given a warranty of title. That’s because, in the words of Drafting Effective Contracts: A Practitioner’s Guide, by Robert A. Feldman and Raymond T. Nimmer, the warranty of title doesn’t “give rise to as much legal excitement and debate as express warranties dealing with the quality and nature of goods or other subject matter.”

Updated 9 December 2018

[I’ve revised the ending of my original post because I’ve decided it’s too speculative to assume that an “entire agreement” provision makes it redundant to include “no other warranties” language. You’ll see that discusssed in the comments.]

So I propose you use the following language, but if the warranty of title isn’t of concern you could omit the language in brackets.

In connection with the Buyer’s purchase of units of any Product under this agreement, the Vendor is making no warranty other than [the warranty of title and] the warranties stated in this agreement. This agreement excludes any warranty of merchantability.

For reasons explained in this 2011 post, I don’t use the word disclaim in my proposed language.

By the way, a reminder: exclusions of warranties don’t have to be in all capitals to be “conspicuous,” as required under the UCC. It’s not clear that they even have to be emphasized somehow. See this February 2008 blog post. But if you want to emphasize them, I suggest bold italics.

Ending of Original Post

Nevertheless, I’m not crazy about saying in a contract something that’s incorrect as a matter of law. So here’s some disclaimer language I’ve come up with:

The Vendor is not making in this agreement any warranty of merchantability or fitness for a particular purpose in connection with the Buyer’s purchase of units of any Product under this agreement.

All this language needs to do is exclude implied warranties. It doesn’t need to say that there are no other express warranties, as that would be covered by an “entire agreement” provision. Getting rid of the blanket exclusion of other express warranties eliminates any suggestion that the buyer is waiving the warranty of title.

By the way, a reminder: exclusions of warranties don’t have to be in all capitals to be “conspicuous,” as required under the UCC. See this February 2008 blog post. That’s why I used bold italics.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.