If a warranty has become a part of a contract a disclaimer usually is not

If a warranty has become a part of a contract a

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If a warranty has become a part of a contract, a disclaimer usually is not effective Disclaimers of Implied Warranties: relatively easy to disclaim because implied warranty dependson circumstances rather than precise word of seller Disclaimer by Language : In case of warranty of merchantability, language used by seller to disclaim liability doesn’t have to be in writing, but if it is written, it has to be conspicuous enough to be noticed by a reasonable consumer and “merchantability”, “with all faults”, or “as is” is said In case of warranty of fitness, the disclaimer has to be written and conspicuous (statement can be general such as, “there are no warranties extending beyond the description on the face hereof”) Disclaimer by Examination : if the buyer fully examines the goods (or model/sample) or refuses to, no implied warranty exists for reasonable apparent defects before contracting. Seller is liable if buyer doesn’t have opportunity to examine goods. Seller always liable for hidden defects, unless it can be proved that buy knew beforehand Disclaimer by Custom or Usage : implied warranties sometimes excluded/modified by trade usage (industry-wide custom) or by custom that’s been established by the two parties Limitation on Damages Punitive damages traditionally not available to plaintiffs in contract cases → warranty suits involve two types of damages: Basis of the bargain damages (value of goods warranted less value received) Consequential damages (personal and property damages proximately caused by breach along w/ indirect economic loss foreseeable by defendant) UCC allows seller to place limitations on damages that may be recovered (ex: recovery can be limited to liquidated damages). Limitation can also be placed on type of remedy available (ex: only replacement of the product without charge) FINISH
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Defenses Private Defense Innocent Bystanders Plaintiff Misconduct Defenses Statute of Limitations and Notice Requirements NEGLIGENCE STRICT LIABILITY Warranty and negligence theories do not afford consumers as much protection as they ought to have Many warranty claims are barred by disclaimers, statute of limitations, or failure to give notice of breach Negligence suits may fail because the plaintiff is unable to prove specific acts of negligence by defendant Strict Liability: manufacturers and sellers are held liable irrespective of fault (good chart on pg. 508) Merchants and manufacturers are better able to bear losses than injured consumers and that, in many cases, losses will be transferred to the buying public in the form of higher prices on products (public bears burden) Eliminating need to prove negligence in a tort action will make manufacturers and sellers more mindful of accident prevention There is an economic basis: bc negligence is difficult to prove, litigation becomes excessively costly Elements of Strict Liability (Section 402A) 1. One who sells any product in a defective condition unreasonably dangerous to the user or
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  • Spring '08
  • Baker
  • Contract Law, Implied warranty, Product liability

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