requirements for an effective disclaimer. **Warranties are cumulative if multiple exist. If two warranties are in conflict and cannot be give effect, the court must attempt to determine the intent of the parties as to which warranty should prevail. The rules are not absolute and can be disregarded by the court if they produce an unreasonable result. When a warranty exists and is breached, an injured person or firm can sue for damages. Because these cases are brought under contract law, plaintiffs can seek compensatory but not punitive damages . As with any type of case, defendants can sometimes avoid liability by successfully raising a valid defense, such as the statute of limitations has run out. When you read the section "limitations on damages," compare the specific types described to those we covered in Unit 4 on tort law. A final idea related to torts is negligence. Negligence is sometimes more appealing to plaintiffs than warranty law. Applying those ideas to the issue at hand, sellers have a duty to use reasonable care when selling, and may have additional responsibilities. They may breach their duties by failing to warn consumers of foreseeable dangers, or if products are carelessly manufactured or designed. Disclaimers that can end implied warranty obligations usually do not prevent a negligence lawsuit, and so negligence can create an alternate legal path for a plaintiff to follow. But in some cases, proving all elements of negligence is more difficult than demonstrating that a
warranty has been breached. When a choice exists, negligence can sometimes be less appealing for the plaintiff DISCLAIMERS : UCC allows a seller to disavow the existence of warranties or to limit the circumstances in which liability will apply by including a disclaimer in the sale contract. Express Warranty Disclaimers : Disclaimer in the contract (but this would be disregarded if there was inconsistency between the express warranty and implied warranty.) Disclaimers of Implied Warranties : The UCC permits disclaimers of implied warranties through (1) the use of language specified in Sec. 2-316 of the Code, (2) the buyer’s examination of the goods, or (3) custom and usage. Defenses : A. Privity Defense, or the direct relationship between buyer and seller. B. Innocent bystanders C. Plaintiff misconduct defenses (can use carelessness as a defense to warranty claims) D. Statute of limitations (4 yrs) E. Notice requirements as set by UCC Sec. 2-607(3) Negligence in Product Liability There is a duty to warn that arises when a product’s design (or intended use) subjects the user to hazard or risk of injury. Differences in Negligence and Strict Liability Negligence Strict Liability Principle A test of whether reasonable care has been taken A test of existence of defect Application Applies to virtually all goods, services, and actions. Applies to products shown to have been dangerously defective and made or sold by someone in the business.
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- Spring '08
- Contract Law, Product liability