Section 42 Disclaiming Implied Warranties

• Library: Commercial Law 2007

Language that calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty should be an effective disclaimer of any implied warranty. Section 400.2-316, RSMo 2000, provides guidance and several examples for effectively disclaiming implied warranties.

Under § 400.2-316(2), to exclude or modify the implied warranty of merchantability or any part of it, the language must mention merchantability, and if the language is in writing, it must be conspicuous. Section 400.2-316(2) also provides that the implied warranty of fitness may be excluded by a conspicuous writing. “Conspicuous” is defined in § 400.1-201(10), RSMo Supp. 2006, and includes a term or clause “written that a reasonable person against whom it is to operate ought to have noticed it.” See Karr-Bick Kitchens & Bath, Inc. v. Gemini Coatings, Inc., 932 S.W.2d 877, 879 (Mo. App. E.D. 1996) (referring to § 400.1-201 to determine whether language is conspicuous). In Oldham’s Farm Sausage Co. v. Salco, Inc., 633 S.W.2d 177 (Mo. App. W.D. 1982), express and implied warranties given by a manufacturer in a contract for sale of a refrigerator system to a sausage corporation were not effectively...