The disclaimer must mention the word merchantability

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purpose. The disclaimer must mention the word “merchantability” to disclaim an implied warranty of merchantability. For fitness for a particular purpose, the disclaimer must be in writing and conspicuous. Appellants only pleaded that appellees breached implied warranties. In order for a disclaimer of an implied warranty to be effective, the plaintiffs must have had an opportunity to examine the product prior to consummation of the contract for sale. Appellees offered six disclaimers, which were all deposition exhibits. 24-4 // Kelso v. Bayer Corporation Facts: Ted Kelso sued Bayer Corporation for strict product liability. He claimed that the warning for the Bayer product (Neo-Synephrine 12 Hour Extra Moisturizing Spray) was defective. He said that Bayer failed to appropriately warn him of the dangers. However, the box explicitly said “Do not exceed recommended dosage,” “Do not use this product for more than 3 days,” and “Stop use and ask a physician if symptoms persist.” Issue: Did Bayer Corporation fail to warn its consumers of the symptoms of its moisturizing spray product? Holding: No, the company blatantly expressed the warnings that the product entails. Kelso’s defective warning claim fails.
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