Warranty (Express, Implied, Disclaimer)
In commercial sales, a seller's promise about the quality, condition, performance, or characteristics of goods. UCC Article 2 recognizes both express warranties (created by seller statements) and implied warranties (arising by operation of law). Both can be disclaimed with specific language.
A warranty in commercial sales is a seller's promise about the quality, condition, performance, or characteristics of goods. UCC Article 2 recognizes both express warranties (created by seller statements or actions) and implied warranties (arising by operation of law). Both can be disclaimed, but disclaimer requires specific language and procedural compliance.
Express warranty (§ 2.313)
Created by (1) any affirmation of fact or promise by the seller relating to the goods that becomes part of the basis of the bargain; (2) any description of the goods that becomes part of the basis of the bargain; or (3) any sample or model that becomes part of the basis of the bargain. Use of "warrant" or "guarantee" is not required; any factual statement that influences the bargain qualifies.
Implied warranty of merchantability (§ 2.314)
Arises in any transaction where the seller is a merchant with respect to the goods sold. The goods must be at least: pass without objection in the trade; fit for ordinary purposes; of fair average quality within the description; adequately contained, packaged, and labeled. Most ordinary commercial goods sales include this implied warranty unless effectively disclaimed.
Implied warranty of fitness for particular purpose (§ 2.315)
Arises when the seller, at the time of contracting, has reason to know (1) the buyer's particular purpose for the goods, and (2) that the buyer is relying on the seller's skill or judgment to select suitable goods. Buyer must in fact rely.
Disclaimer (§ 2.316)
Merchantability may be disclaimed by language mentioning "merchantability", and if in writing, must be conspicuous. Fitness may be disclaimed by general written language ("there are no warranties extending beyond the description on the face hereof"), conspicuous. Both implied warranties are excluded by expressions like "as is," "with all faults," or similar language. Inspection or refusal to inspect by the buyer also excludes warranties as to defects that an examination would have revealed.
Disclaimer language and conspicuousness requirements are routinely litigated. "Conspicuous" means that "a reasonable person against which it is to operate ought to have noticed it" (§ 1.201(b)(10)), typically requires capital letters, bold, contrasting type, or larger font. Boilerplate disclaimers in non-conspicuous fine print are routinely held ineffective.
Companion article: Contract Disputes in Texas