The Texas Two-Step

[2-316(3)(a)] [formerly section 41(2)(a)] "[r]aises a leaves many consumers with no option for recovery. negotiated; and (3) whether there thus allowing a plaintiff to 143. prudential, 896 s.w.2d at 161. no imperfections," "excellent!!! condition", and "[w]e have "purchase something "as is," the buyer agrees to make his own 106. broomfield v. parker, 2007 wl 677819 (tex. app.--tyler of implied warranty counter claim, partly because the underlying tions. lower courts have treated prudential as granting a license the cases discuss above demonstrate that to defeat an are understood to mean that the buyer takes the entire the ali took the new york commission criticism to heart. while the dtpa does not provide an independent statutory particularly when a misunderstanding exists as to the intended 120. id. at 2. (a) and certain provisions of the texas deceptive trade practices act.4 sufficient to exclude the implied warranty of fitness for a particu- ing a warranty disclaimer is where any right, duty or liability would arise under a the court found the evidence native effect in every circumstance . . . [a] buyer is not bound 103. id. relies on the seller's skill or judgment (whether he be two-step ations. first, an implied warranty attached when the buyer made sequences, of which the the language of the subsection lends itself to a holding that the speci- bought a used car from the defendant- 37. id. 111. id. the sales contract stated, "it is agreed as a condition prec- mitigates the effects of an "as is" clause. this article discusses this process, focusing on the development of two separate bodies of law, tennessee, the buyer found that a portion of the car had been re- 83. id. interpreting the ucc's disclaimer lan- ment of a seller who deals in goods of the language required by this subsection for consumer finance and economics.130 93. id. at 165-66. applying prudential, which have demonstrated that an "as is" historically, the "rule" had been that implied warranties attached and any "actual damage" award will unlikely be large enough for a f. proposed changes to ucc 2-316 (2003) or other terms which in common understanding call an attack on an "as is" warranty disclaimer begins with 68. id. second, the court looked to whether the "as form commercial code local building codes.34 tion to the exclusion of warranties and make plain that there is no implied warranty?" this question would be the consumer-plaintiff, by requiring the consumer to address the tected those who need these warranties warranty, and even signed two documents disclaiming all warran- 38 journal of texas consumer law onstrate that is has done so. 28. note that the ucc definition of "consumer" is the more tra- g. summary of implied warranty disclaimers and the uni- repaired the car and sold it at auction.110 96. id. at 414. commission for 1955: study of the uni- a matter-of-law: 131. id. 115. kane v. nxcess motorcars, inc., 2005 wl 497484 (tex. by purchase or lease, any goods or services, except that the term 14. the american law institute, names and years of all ali the uniform commercial code did not apply to this case because as is one customtrike hon- 25. 1956 recommendations to uniform commercial code � 142. tex. bus. & com. code ann. � 17.50(a), (a)(2)(vernon tion, which includes "an individual, partnership, corporation, this if necessary element of any dtpa claim. thus, unless the clause is 109. id. is" clause disclaims implied warranties under the uniform commercial code ("ucc"), and "no-reliance" language within the clause er provision, clearly stating that the entirety of the circumstances ment purports to make the revised act's disclaimer provision far the goods are required, and it appears that the buyer a buyer knew that implied warranties were excluded. further, are two distinct bodies of law at work, the ucc and the dtpa, er foe. in this context, the dtpa 137. id. while the law had long allowed disclaimer of implied warranties, mission, http://www.lawrevision.state.ny.us/index.php. attacked successfully, on both levels, a defendant can be awarded $42,000 from a houston, texas car dealer.115 negligence, and breach of the duty of good faith and fair deal- of understanding the disclaimer due to a language barrier.140 and, as such, summary judgment on the issue was improper.47 mended by the american law institute."23 this section reviews cases applying and painted.120 prove the "circumstances indicate" that understanding calls the buyer's attention to the exclu- against the seller, with claims that in- 39journal of texas consumer law 15. uniform revised sales act � 15, reprinted in elizabeth slusser while the pru- a matter of law, thus allowing a plaintiff to survive a summary of the contract and that the buyer fully understand the disclaimer. clearly the court recog- summary judgment. lished that neither the buyer nor the the texas more neutral stance.31 32. tibbits v. openshaw, 425 p.2d 160, 161 (utah 1967). entity with assets of $25 million or more." shortly after purchase, the car caught fire and tually any disclaimer would have been effective against a buyer he be the grower or manufacturer or not), there is an the plaintiff-buyer fails to satisfy one of the exceptions, he will be 123. id. in consumer warranty claims under the as described by the court, was "english illitera[te]."49 court cited section 2-316(3)(a) when it stated, "goldman's `as is' 42. id. at 1083. ducing cause and disclaim the implied pecting buyer by including 774 (minn. 1923). person in the position of the buyer relied on the merchantable power" existed.131 80. id. amended code provision takes extra steps to protect consumers creates an extra hurdle for the consumer bringing a warranty cessfully overcome an "as is" clause as it relates to producing cause being effective; however, the record contained nothing to suggest must indicate that a buyer understands no implied warranties are applied in texas, and demonstrate that, in some situations, pru- mercial code drafts 63-64 (1984)(emphasis added). by jason b. melvin* with the dtpa. mcnamara pontiac, inc. v. sanchez (florida)c. when a warranty claim is brought under the texas thus defeating any possible recovery under the dtpa.104 risk as to the quality of the goods involved.... age consumer.139 less the circumstances indicate otherwise." the report contained 114. id. in phone conversations with the salesman, the buyer asked several afford used goods. as a side note, while most texas courts of ap- prudential in dtpa cases, and the results can be harsh. even if to exclude the implied warranties: "as is", "as they stand", and to effectively disclaim all implied and express warranties.112 this case dem- moreover, the official shouldn't hurt him, 99 com. l.j. 1 (1994) ([2-316(3)(a)] [for- fendant-seller.42 issued a summary judgment in favor of the seller and the buyer 58. id. at 432. necessity to assert facts that indicate a disputed understanding signed by goldman in the past.80 ners of a contract and look very broadly at all the circumstances tinued, implied warranties, and the corresponding methods of report. the report criticized the absolute nature the ucc con- "as is", "as they stand", or the like in a contract necessar- as early as 1909, the law of the united states provided the presumption was that any disclaimer was a bargained-for part stated that the uniform sales act does not "prohibit the inclusion and that there [were] no representations, guaranties or warranties like any good "understanding of the parties" regarding the disclaimer, an "as is" warranties are made or that a certain implied warranty common factual situations in which the circumstances mitigating the effect of "as is" clauses mid continent aircraft is another example of the im- pose.19 appealed.102 the texas legislature enacted the texas dtpa, fully (3)(a) unless the circumstances indicate otherwise, all again, this demonstrates 104. id. at 416-17. third exception focuses on "boiler-plate" contract clauses used no warranty, and the buyer signed both 141. mid continent aircraft corp., 572 s.w.2d at 313. 78. see id. at 161. the court noted that nxcess sold the seller told the buyer that the car had dist..] 2001, no pet. h.). 94. id. at 166-67. than $25,000,000 at stake, the lower court cases clearly dem- interestingly, comment 7 to section 15 of the re- 878 (tex. app.--houston [14th dist.] 1973); contra mid con- jurisprudence. no goods were involved, the court found article 2 was "appropri- the uniform sales act to give effect to disclaiming language con- made, we conclude that the `as is' clause may not preclude kane's sor mary spector for her guidance and direction. 76. prudential ins. co. v. jefferson associates, ltd., 896 s.w.2d dealing between the parties, or by custom, if the custom be such as words" that had significant legal consequences, of which the buy- economic damages. importantly, the court determined that the the supreme court of utah.36 66. id. at 313. the following cases illustrate how prudential has been surance company of america.79 2005 wl 497484. on the "as is" clause and the installment sales contract provision 73. id. at � 17.45(4). lying warranty claim. warranties to be disclaimed, the ucc language has shifted friendly double-whammy effect for warranty claims brought in show evidence that "such was not the understanding of the par- above, the court affirmatively stated that when a buyer agrees to and the like. such terms in ordinary commercial usage to call the buyer's attention to the fact that no implied contracts governed by this subsection. prohibit the disclaimer from operating as a matter of law, thus ing the implied warranties. second, one must address the dtpa the necessary element of producing cause. this is a particularly while the prudential court did create exceptions, they are narrow, both sides have important issues to consider. at a minimum, the is", "with all faults" or other language which in common a verdict in favor of the buyer for over $25.6 million dollars (the by the dtpa), also tex. bus. & com. code ann. � 17.50(a)(2) trial court, remanding for further proceedings.126 would lead to results inconsistent with reasonable intention of the when parties have relatively unequal bargaining positions.91 provision, or that some misunderstanding exists as to the scope asserted that section 2-316(3)(a) prevented the disclaimer from proofing, and last, but not least, a trial court judgment of over volved, the dtpa shifts from the "as is" disclaimer also stated record was devoid of any evidence that the parties discussed the "tie" the first factor; he held bachelor of science degrees in both com/histsales/usai.html (emphasis added). that this language is such as to call "the buyer's atten- ucc florida case, the court found that the implied warranties ucc � 2-316(3)(a) and the "unless the circumstances indicate than terms to be understood by, and effective against, the aver- pickup because of the "as is" warranty disclaimer.99 12 of the . . . best qualified salesmen . . . anywhere in houston."116 added to section 2-316. this language serves as a qualifier to quality of the goods or their fitness for a particular purpose.21 contained the disclaimer provision, which allowed sellers to dis- shouldn't hurt him, 99 com. l.j. 1 (1994). terms such as "as is," "as they stand," "with all faults," matter of law, unless the plaintiff is able to satisfy one of the three "report of the new york law revision seller who deals in goods of that description (whether (3)(a) unless the circumstances indicate otherwise, all portance of presenting facts that establish some disagreement or cluded breach of express and implied situation makes it impossible for the consumer to pursue judicial the following statements regarding section 2-316: the underlying warranty claim, but also elements that relate only a breach of warranty claim, when one exists, through article 2 1. * mr. melvin is a december 2008 j.d. candidate at southern or intended effect of the clause. the ultimate goal of challenging the court devoted a 140. see knipp, 351 so.2d 1081 and mcnamara, 388 so.2d amendments to the uniform commercial code in 2003, includ- was no doubt the "circumstances indicated" confusion among 49. mcnamara pontiac inc. v. sanchez, 388 so.2d 620, 620-21 ranties. pact the majority opinion would have on the more typical con- the concurring justices agreed in the ultimate outcome of pru- tract necessarily negate implied warranties, or must it also be shown longer qualifying language concerning the circumstances under act. section 15 of the revised act continued the tradition of part of the contract. found the "as is" clause operated as a bar to the buyers dtpa contract between two equally positioned parties.29 this version of the exclusion provision, which was much were part of this sale. while the court recognized that article 2 of iii. breach of warranty what was intended. the implied warranty of fitness in any contract. use of comment 7 completely ignores the con- thus, active dtpa and entered judgment for the buyer to recover $1,421; the and an "as is" clause is in- tion against the buyer. in reality, the history and development er was unaware. the proposed ucc listed three specific terms to include disclaiming language in the final sales contract. the not always effective. whether this is good or bad news depends implied warranties are excluded by expressions like "as court referred to this as an "as is" sale.56 perhaps render it ineffective, if courts believed that a "reasonable this anguish damages and attorneys' fees and costs.75 127. id. at 4. slusser kelly, uniform commercial code drafts 32 (1984) seller appealed.111 summary judgment on either issue. to the sale of used goods.18 the trial court and not the broader texas deceptive trade practices act defini- other information conveyed by the seller. 43. id. service, inc., 572 s.w.2d 308, 309-13 (tex. 1978). added). ing "proposed changes in the law recom- ferred upon "as is" warranty disclaimers and prompted changes to the houston first district court of appeals made by making a distinction between new and used goods. the com- the sales contract contained an this for purposes of discussion, it will be assumed there are no issues these implied warranties. section 41 of the 1944 revised act dtpa, the plaintiff is required to satisfy not only the elements of because of his inability to read english, and that the "circum- 2. tex. bus. & com. code ann. � 17.41, et. seq. (vernon clauses operate to absolutely disclaim the implied warranties in comments.26 fication and simplification of the law, the ali issued proposed implied warranties. buyers were presumed to understand those the plaintiff-buyer, parker, proposal, in relevant part, is as follows: perhaps the most fatal issue for curry county was interesting dilemma for the attorney advocating for a consumer. the ali's comments leave little doubt as to why the show, "as is" clauses, and other similar warranty disclaimers are month via the internet, while kane, the buyer, had purchased ap- the salesman represented to sanchez that the whether implied warranties attach to used goods. citing a pre- would arise under a contract to sell or a sale of implication of law, implied warranties in the sale of goods, and the exclusion of those edges that in certain circumstances, a bona fide question will ex- fact question as to the understanding of the "as is" disclaimer to the transaction at issue, the bike had changed hands on three ranties by employing "as is," "as they stand," or "with all faults," 26. the american law institute, ali brochure, http://www.ali. who is unacquainted with the trade understanding of these terms. the custom be such as to bind both parties to the con- 6. the exceptions . . . set forth. . . in . . . subsection (3) are have no legal effect. thus, even if the sales contract contained was concerned that sell- the disclaimer provision ultimately adopted the 1956 rec- 572, 576 (tex. 1991)(action for breach of warranty is not created changes were made. the ali explained the "[r]eason . . cause and disclaiming implied warranties.144 this opinion conferred super-power upon in favor of the seller, and the buyer appealed.125 providing buyers with implied warranties and took a pro-buyer 82. id. 40. id. at 1083 (bold in original). meaning or scope of the disclaimer.67 1981). this case demonstrates prudential in action. the lower court the record contained no evidence title, and license cost.109 the vehicle was ad- section 41. exclusion or modification of warranties. beth slusser kelly, uniform commercial code drafts 31-32 more friendly to the seller, allowed general disclaiming language this comment would have left unpro- "as is" disclaimers will be ineffective. first, the court stated, "we in the appeal, the buyer the new york law revi- revised act's disclaimer provision was pro-seller, allowing very 46 journal of texas consumer law and purports to be the oldest such group "as is" disclaimer in a more typical con- courts address "as is" clauses in consumer warranty claims. effect or scope of the disclaimer, or when one party is incapable the result of a defective weld on the histsales/usai.html (this language should seem familiar; it was is excluded. 87. id. the third prong was the pro- 39. id. at 1083. tract.122 45. id. (referring to "unless the circumstances indicate other- jurisprudence mystery, even though the evidence established that lar purpose (the only implied warranty at issue) and consistent the new york commission c. the revised uniform sales act (1944) if the attorney attempts to recover the possible enhanced dam- dition of the qualifying language, "unless the circumstances indi- tions set out by the texas supreme ion, prudential insurance company v. jefferson associates.76 while the uniform sales act of 1909 provided these presented by the inclusion of the terms listed in [(3) an "as is" warranty disclaimer and an in- 156 (tex. 1995). 138. u.c.c. � 2-316(3)(a) (2003). the trial court dismissed the buyer's breach claimers from operating as a matter of law when facts show some giving the buyer an opportunity to argue the merits of the under- soon after the purchase, the brakes failed and mr. masker was and have the opportunity to argue the merits of the underlying 77. id. at 160. plied and express).108 buyer, and created an uncertain "reasonable person" standard. if and that the homes were not constructed in compliance with the ranty of fitness for a particular purpose disclaimers of implied warranties: what the buyer doesn't know is" disclaimer by showing facts that 91. id. may also negate producing cause, a necessary element of any dtpa claim. in this context, there is a distinct "two-step" process that hereto... except as herein specifically set forth."35 tained in contracts: dential majority likely never intended its holding to operate 133. id. without considering whether, and to what extent, the buyer may of the ucc supports the opposite position, that the field can be nized that the ucc contemplates circumstances will exist that "naughtiness" in the totality of the circumstances. it is interesting warranties.106 had problems when driven at high speeds.96 the court stated, this car via the internet.129 the for the second step, an "as is" clause must also be ad- in no event shall the company be subject to any other or further a. the uniform sales act (1909) dtpa claim can be significant, with possible treble economic and mental anguish damages, success requires the crossing of several fairly lot and asked for a refund of the purchase price and his costs.121 d. the new york law revision commis- which had been re-codified as section 2-316. the commission certain "magic words" that this amendment prohibits a seller from effectively using an "as sumer transaction, one that involves substantially less than $25 while the proposed code and official comments civ. app.--houston [1st dist.] 2005, no pet. h.)(not reported in 130. id. the defendant-seller continued to assert no liability to repair the car was covered by a general motors warranty for two years or sumer struggling to recover damages. this situation sets up an cept of reliance. both the implied war- by the uniform commercial code, but rather, the clause was e. summary of breach of warranty & "as is" clause (all implied warranties are excluded by general language like "as "as is" disclaimer, it is necessary to present facts that demonstrate days estopped the buyer from claiming breach of warranty.8 124. id. provision during negotiation.134 squarely into one of the excep- consumers, the principles discussed may apply in a broader commercial context. had significant legal con- appraisal of the bargain and to accept the risk that he may be york law revision commission for 1955 study of the uniform it may be negatived or varied by express agreement or by the course of court stated that the contract provided the buyer a reasonable the implied warranty disclaimer language. to note that prudential, as applied, imposes a higher burden on in this 74. id. at � 17.43. claim the implied warranties provided in it's 1956 recommended changes, the ali changed the implied 86. id. at 161. have not been adopted in any jurisdiction, they do provide ad- 139. id. official comment 6 and 7. ing an affirmative nod to section 2-316(3)(a)'s "unless the cir- i. introduction & scope cluding claims of breach of the implied warranty of fitness for a argued that the record clearly estab- it met with criticism from the new york commission in its 1955 that even if the consumer established that certain warranties were as shown above, the implied warranties of merchant- was knowing misrepresentation or concealment of a known fact."128 nal proposed language of section 2-316(3)(a) been adopted, vir- the buyer did not understand that "as is", "with all faults" or other comes at no surprise, as the evidence as presented in the opin- has assets of $25 million or more, or that is owned or controlled e. current uniform commercial code � 2-316 claimer. absent facts suggesting such a misunderstanding, courts contracts satisfies the language requirements for other was sold for $37,000 and the proceeds offered to the buyer.123 70. id. at � 17.50(a), (a)(2) (vernon 2008). 69. southwestern bell telephone co. v. fdp corp., 811 s.w.2d need not be in a record, but if it is in a record it must 2008). trial court ruled for sanchez, finding the disclaimer ineffective. warranty, it does provide a procedural mechanism for bringing the buyer refused, and filed suit for fraud and other violations of claimer.95 had the origi- subsequently, the buyer returned the car to the seller's consumer advocate to consumer foe. in this context, the dtpa 20. uniform revised sales act � 41, reprinted in elizabeth slusser court held goldman, the plaintiff, to his "as is" agreement, having leveled by a fairly minimal showing of evidence by the buyer that 48. id. vi. conclusion was easy to see that it was not; the contract was faxed to the buyer language in operation. the plaintiff-buyer was able to create a ture from the tradition of implied warranties in the sale of goods. only two days after the sale, smith noticed the truck an "as is" clause serving to disclaim implied warranties and negate while the majority opinion is certainly friendly to "as the ucc was revised to include the now familiar provison, "un- noting that the buyer knowingly bought the aircraft on an "as case, knipp purchased a "trike" (three wheeled motorcycle) from which the parties entered the contract or whether a reasonable titled, the texas deceptive trade practices-consumer protection forward. the plaintiff-buyer, jefferson associates (goldman), 7. marshall milling co. v. hintz-cameron co., 194 n.w. 772, if the trier of fact finds the defendant acted knowingly or inten- indicate otherwise" language in ucc � 2-316(3)(a) is to show to the sale of goods. the 1944 version of the revised act de- stances indicated" that the disclaimer should not be effective. whether the agreement was freely 2 of the ucc. tially noted that the buyer must show proof of producing cause the houston first district court of appeals reversed the comments imply that disclaimer terms such as, "as is," "with all knipp demonstrates usage of the "unless the circum- seller, intended the "as is" clause to dis- parties, and may not have been intended by the drafts- unfairness in order to establish producing cause. failing to satisfy s.w.3d). ity or fitness for a particular purpose, then the disclaimer would uniform commercial code and the rear axle of the trike.41 "as is" clause has an adverse affect on both the underlying warranty looking to the first exception, inequity of bargaining power in the "totality of the circumstances" other jurisdiction, florida, has held that implied warranties attach implied warranties as a matter of law in every situation. the ad- much broader, see tex. bus. & com. code ann. � 17.45(4) by excluding implied warranties by the addition of disclaiming warranties, have a long history and firm roots in united states in conjunction with the dtpa. these cases demonstrate that invalid for any reason under the uniform commercial code . . . less friendly to buyers by allowing sellers to effectively exclude the "as is" disclaimer in this case is invalid for any reason under and others, for breach of warranty, negligence, and strict product does less than was intended, and may do just the opposite of what 72. tex. bus. & com. code ann. � 17.44 (vernon 2008). claims brought in conjunction with the dtpa, because such an tionally, treble economic damages are available along with mental claims & "as is" clauses the court of appeals undertook a thorough analysis, ultimately other sections of the ucc, the balance 620. the court held this provision make plain that there is no implied warranty...20 to bring a successful warranty claim under the is", "as they stand", and "with all faults" made plain there were no an "as is" clause, allowing the clause to both negate the dtpa ele- tion. the plaintiff, smith, bought a pickup truck from defendant tection."72 and have the opportunity to ducing cause "must be shown" to recover on all dtpa claims, narrow exceptions.94 if the facts favor coupling the warranty claim with the broomfield demonstrates how an does not include a business consumer that has assets of $25 mil- kane shows that, in the right situation, a consumer can suc- below, this language served as a mechanism to keep "as is" dis- with section 71 of the uniform sales act.12 sale, nor [does it allow the parties to] avoid any lawful term or in this context, a consumer purchase means goods purchased for even though no warranty claims were at issue, the the sale of used goods.44 ommendation language, set out above, which included "unless 71. section 1 of acts 1973, 63rd legislature, p. 322, ch. 143. implied warranty under the ucc and negate producing cause, a the concurring opinion written by justice cornyn, and a particular purpose), or by presuming be an acceptable alternative, it is not. because so little money is 136. id. at 7. v. the texas dtpa & "as is" disclaimers sumer transaction can both negate pro- cally charged with receiving and consider- courts have long allowed sellers to limit their contractual liability for summary judgment to the defendant-seller by allowing an "as demanding a return of her down payment of $1,000 plus the tax, 97. id. at 415. texas deceptive trade practices act knipp is a excellent example of the application of sec- clause disclaimed all implied warranties.103 sanchez to prevail on the dtpa claims.127 as a matter of law.30 the contract 22. new york state law revision commission, about the com- a buyer will rely on the skill or judg- approach to disclaiming these warranties by introducing the con- court. the court stated, "[t]he facts that establish the clause were a surprise, an unbargained for underlying warranty claim. warranty in second-hand sales. the subsection would provision that may be thus mutually agreed upon."13 for any particular purpose of goods supplied under a not part of the bargained agreement.54 keeping true to its stated purpose of promoting clari- 24. new york law revision commission, report of the new makes plain that there are no implied warranties. this created a ages under the dtpa, the attorney must show fraud or severe this case demonstrates the need to assert facts that allege (1) where the buyer, expressly or by implication, makes 79. id. at 159. in the sale of the airplane."68 (a). the claims in these cases may be 112. id. at 2. satisfied none of these exceptions.92 reinforces the code text, by plainly requiring a conspicuous re- this exceptions, the consumer's dtpa claim is essentially eliminated, exclusion that, when a valid "as is" clause such as this one exists, the buyer known to the seller the particular purpose for which weinbaum. the trike was constructed two years earlier and, prior that in "as is" sales subsection 6 would have no applica- ing service, (texas) sufficient to support the trial court's finding that mr. sanchez substantial part of the opinion to discussing prudential, noting a producing cause of her damages."114 kelly, uniform commercial code drafts 32 (1984)(emphasis while some may consider the ucc warranty disclaimer ing against prudential under the texas dtpa. 82 quick work of the consumer's warranty claims, finding the "as is" not attach to the sale of a known second-hand good, these cases is" disclaimers from the sellers' standpoint, the opinion did rec- finding the "as is" clause to be inoperative, allowing the buyer to ognize that such disclaimers will not be effective in every situa- the following section focuses on "step two" of the pro- this it is specifi- merly section 41(2)(a)] "[r]aises a problem of construction. will such a disclaimer. as a direct result of this report, this section of gardless of the facts, this case shows that courts are looking to through a general disclaimer (including "as is") in the sale of used required to satisfy one of the prudential exceptions in order to clause affects elements of the dtpa and elements of the warranty contract to sell or a sale, except as follows: warranty, and, in a consumer contract evidenced by a consumer contracts. in a commercial contract, language of the disclaimer.59 disclaimer, such warranites would exist. furthermore, at least one 389-94 (1984)(emphasis in original and added). (vernon 2008). induced to make [the purchase] because of a fraudulent represen- tication, the court believed that no great "disparity in bargaining accepts the property in its present condition and that there are injured in the resulting crash.55 . subsections (3)(a) and (3)(b) [were] changed for clari- of merchantability and fitness for a particular purpose attach to the court stated, "without more, we are con- ate precedence" to apply in this contract action.37 clude implied warranties; this consequence would lead to bind both parties to the contract or the sale). the united states. since 1909, the law imposed these implied 132. id. that the facts are unfriendly to satisfying one of the prudential 4. kane v. nxcess motorcars and further provided that keeping a shipment beyond thirty the decision to purchase the goods. second, an implied warranty ily negate implied warranties, or must it also be shown clause served the dual purpose of negating producing cause for the goes" stance in the sale of used goods. totality of the circumstances surrounding the agreement."90 this decision appears to imply that without the while the now commonly-used "as is" clause is not and the warranty of merchantability 40 journal of texas consumer law the wrong."85 the salesman and his manager knew a portion consumer's dtpa claim. when it is obvious from the outset of the disclaimer provision shifted to a 98. id. my have been rendered ineffective by the decision in mid conti- relying on mid continent, discussed methodist university dedman school of law. he thanks profes- 92. id. at 163. is that an "as is" disclaimer containing a "no reliance" clause will mary judgment on the dtpa claims, disclaim the implied warranties through any other language that curry county spraying purchased a used airplane from 107. id. at 1. upon delivery of the car to 2-316(3)(a), reprinted in elizabeth slusser kelly, uniform com- the cases above clearly show that an "as is" clause operates the key to successfully employing the "unless the circumstances lying warranty claim, rather than be faced with an unfavorable issue of fact that `the circumstances indicate otherwise.'"60 course of dealing between the parties, or by custom, if ably contained an "as is" clause that purported to disclaim all 108. id. org/doc/thisisali.pdf. limited warranties to buyers, sellers were allowed to disclaim them claim one, or both, of the implied warranties. this version of the smith truly embodies the "traditional" consumer transac- ties. following prudential and smith, the court found the "as is" that the record contained no evidence of a disagreement about the plied warranty or condition as to the quality or fitness 89. id. 33. id. 1977). 1950's, when "unless the circumstances indicate otherwise" was action was based in contract law, controlled by the ucc.65 the "circumstances indicate otherwise." the cases interpreting and applying section 27. u.c.c. � 2-316 (2003). judgment and have the opportunity to argue the merits of the smith had a tow truck return the she was precluded from proving that any acts by the [sellers] were as opposed to warranty claims brought the sale, signed a "dealer warranty disclaimer" which presum- 84. id. at 160-61. including a disclaimer as part of the basis of the bargain that "cause of economic damages or damages for mental anguish."70 54. id. the circumstances indicate otherwise." in addition, the relevant app. 1977). be negatived or varied by express agreement or by the with the conspicuousness of the "as is" disclaimer. finally, while this paper spawned from an interest in obtaining relief for traditional to a holding that the specified phrases necessarily ex- summary judgment in favor of the de- cord to effectively disclaim implied warranties in a consumer ing the implied warranties and defeating the claim. as these cases 43journal of texas consumer law (a)] in a contract of sale with a non-mercantile buyer and survive summary judgment on the issue. two florida cases misunderstanding about the intended effect of the disclaimer. if the circumstances of this case fell plied warranty disclaimer operates, it is necessary to discuss the elizabeth slusser kelly, uniform commercial code drafts warranties.50 the seller aware of a particular purpose for which the goods would ucc, and criticized the implied warranty disclaimer provision, commercial law became increasingly important. to help facilitate in the common-law world.22 sophistication of the parties; (2) clause can have a double-whammy effect, negating producing purchases do not involve large amounts of money, and, with little at stake, it can be extremely difficult for consumers to obtain judicial 12. id. at 1000. listed in [(3)(a)] in a contract of sale with a non-mercantile buyer is" basis.66 aliprojects.pdf. the dealership sought an appeal.52 is" clause to negate producing cause and disclaim implied war- later, the defendant sold the vehicle at an auction.100 unfriendly hurdles.3 sion." surrounding a transaction. the provision was favorable to the circumstances indicate otherwise." as discussed in more detail his injury . . . [h]is contractual disavowal of reliance upon any comments are as follows: disclaimer is sufficient to exclude implied warranties. comment 7 is at odds with the language in the ucc, gal institute ("ali") came into the picture around 1940.14 buyer.118 126. id. at 8. of implied and express warranties and fraud.101 men." 24 tinent aircraft corp. v. curry county spraying service, inc., 572 the pertinent facts of prudential are relatively straight- render an "as is" disclaimer invalid. by an agreement to purchase something `as is' . . . [when] he is further, the court asserted is" sales sticker attached to the good as a disclaimer, while failing comment 7 plainly states that terms like "as is," "as they stand," recovery on his claims as a matter of law."137 "[b]ecause evidence exists that knowing misrepresentations were be conspicuous. under this subsection, a conspicuous language in the sales contract. the texas dtpa.124 clusion of warranties and make plain that there is no implied war- 3. broomfield v. parker part: having no opportunity to address the 38. knipp v. weinbaum, 351 so.2d 1081 (fla. dist. ct. app. the evidence radam, and the sales contract contained an "as is" warranty dis- $25 million.77 the second the ultimate goal of challeng- validity of an 'as is` agreement is sion commission ("commission") is a 125. id. at 1. tract or the sale.6 2. smith v. radam rent uniform commercial code sections 2-314 and 2-315, the this burden and prudential will negate a necessary element of the the texas supreme court has even spoken on the matter, giv- to defeat an "as is" disclaimer as it relates to producing cause.93 tices, unconscionable actions, and breaches of warranty and to exclusion, continued to undergo changes. by 1944, separate sec- parties, and may not have been intended by the draftsmen). contingency arrangement. the legal and economic reality simply nothing in these two comments suggests that "as is" lion or more, or that is owned or controlled by a corporation or vertised on ebay, along with the following statements: "there are ali tried to acheive uniformity with the revised uniform sales in finding any kind of reliance or of merchantability- 18. knipp v. weinbaum, 351 so.2d 1081, 1084 (fla. dist. ct. 2-316(3)(a) also show that an "as is" clause can be overcome, warranty disclaimers would be a bargained-for provision of the both buyer and seller fully comprehend.48 heavily on knipp v. weinbaum.53 ified by general language of a contact . . . if the circum- gave the buyer thirty days in which to reject the goods (flour) 3. see id. � 17.50 (outlining damages allowed). ability and fitness for a particular purpose have a long history in claim. an effective "as is" clause will negate the existence of an could be particularly relevant in many states today. mr. sanchez, 100. id. form commercial code." the multi- a disclaimer, the buyer could always challenge the clause, and 10. minneapolis threshing mach. co. v. hocking, 209 n.w. the practical effect of the majority opinion in prudential ficial comments were reworked to read: the trial court awarded summary judgment following knipp merit further disussion. 4. please note that citations refer to ucc 2-316 and its subsec- in addition to amending the text of the code, the of- as this area of law developed, largely due to a fact question is created about the scope of the disclaimer, it can these facts allows a disclaimer to operate as a matter of law, negat- sion report 99. id. another disclaimer of all warranties (im- nothing in the development of the code suggests that "as is" ship, corporation, this state, or a subdivision or agency of this state to show that a misunderstanding existed as to the warranties that purchased a used car from mcnamara pontiac and, as part of producing cause. plaintiff's claim is based on an implied warranty, the same "as is" buyer was unaware. tions rather than the texas business & commerce code section commercial code at 409 (1955), as reprinted in r.j. robert- tion 2-316(3)(a)'s "unless the circumstances indicate otherwise" the most, because lower income consumers may only be able to warranties of merchantability and fitness for a particular pur- survive summary judgment and litigate the underlying claims. bill of sale that stated, "cycle sold commission issued its report criticizing section 2-316(3)(a) and 95. smith v. radam, 51 s.w.3d 413 (tex. app.--houston [1st court believed that because the buyer "purchased the vehicle `as is', 51. id. time to reject the goods, and "having failed to report within the was a substantial factor in bringing about injury which would not mid continent was the only defendant to appeal.64 of the car had been repainted, but chose not to disclose this to the on their fitness for a particular purpose.15 in regards to producing cause. after a period of approximately fifteen months, the car (2)(a) all implied warranties are excluded by general the court agreed that prudential son, jr., a modest proposal regarding the enforceability of "as is" 65. id. at 310-13. terms as an absolute exclusion of the implied warranties � a depar- by the statute, because there is nothing in the record to create an deficiency.33 outside of a commercial transaction context and, as such, does approximately 150-200 cars per to results inconsistent with reasonable intention of the implied warranties of merchantability and fitness for a particular implied warranty that the goods shall be of a merchant- will almost certainly consider the disclaimer effective.61 understanding calls the buyers attention to the exclusion onstrates that if a buyer cannot show evidence of some alternative within a clause will negate producing cause as a matter of law.143 craft.63 liability by disclaiming these warranties. in the early 1900's, proximately fifteen luxury cars in the last several years, but only by a corporation or entity with assets of $25 million or more."73 41journal of texas consumer law the underlying purpose of the act is to "protect opportunity to argue the merits of the underlying claim. while supreme court found section 2-316 relevant, because an "as is" the contract, and ensure that the buyer does not rely upon any iv. the texas deceptive trade practices act in appeal, the buyer concealment of a defect by the seller will render an "as is" clause every situation. for example, comment 6 states that section leaving only the "bare warranty" claim under the ucc, and no this version of the revised act became the proposed ucc, and to contract, tort, or other remedies.74 slusser kelly, uniform commercial code drafts 389-90 tation or concealment of information by the seller."88 apparently the basis for what would eventually become the cur- language like "as is", "as they stand", "with all faults" few hours of the purchase, the buyer 57. id. at 432-33. disclaimers are effective, as a matter of law in every instance. had been repainted, yet chose not to disclose this information the tibbits entered into a real estate contract with the as the united states infrastructure developed, leading provision friendly to the seller and harsh to the buyer, particularly bought an office building in austin, texas from prudential in- does less than was intended, scope of the implied warranty disclaimer. failure to establish 105. id. at 417. 44 journal of texas consumer law example of section 71's disclaiming power. in marshall, the min- agreement negates his claim that any action by prudential caused (vernon 2007). otherwise" language. in order to better understand how an im- (1984). ucc and issued a report in 1955 entitled, and could be "managed in place" for $61,000, the jury returned 116. id. at 1. is", "with all faults" or other language that in common overview brought under the texas dtpa, 36. id. at 162. projects, past and present, http://www.ali.org/doc/past_present_ fication and to meet criticism by the new york commis- prudential is an exciting case by all accounts, with a large "with all faults". it also included an additional generic method to implied warranties are excluded by expressions like "as 52. id. argue the merits of the under- able quality.5 dtpa, mitigating the effects of the "as is" clause is truly a two- guage of section 2-316(3)(a) allows a conjunction with the dtpa. mid continent for use in crop-dusting. the sales contract con- this article focuses primarily on employing the "unless the circumstances indicate otherwise" language of ucc � 2-316(3) while the spoils of a successful the trial court entered a summary judgment involved in the cases above, these cases clearly demonstrate that 134. id. buyers of goods with the benefit of implied warranties in two situ- thus, the ali agreed with the new york commission that un- be used and the buyer relied upon the seller's expertise in making the court stated, "curry that one of the prudential exclusions applied to this situation. nent aircraft corp. v. curry county spraying service, inc. in mid "as is" disclaimer, as did several "big ticket" real estate contracts thus, the "sole cause of a buyer's injury in such circumstances . . . is" clause was a freely negotiated term between the parties.132 over time from seller-friendly to buyer-friendly. importantly, the grower or manufacturer or not), there is an implied edent to the warranties and agreements herein contained, and of effort to refinance the building, goldman discovered asbestos next, the court stated that the language language actually operated to exclude the implied warranties of many traditional consumer purchases involve goods, often second-hand goods, bought on an "as is" basis.1 because of the buyer's level of sophis- curry county brought actions against mid continent, problem of construction. will the inclusion of the term parted from prior law by allowing two simple words ("as is") to 110. id. 6. uniform sales act of 1909 � 71, http://www.drbilllong. the current lan- in fact, the history and development of the ucc suggests a while the dtpa focuses on "consumers," that term is s.w.2d 308 (tex. 1978). ditional "primarily for personal, family, or household purposes," ist as to what a buyer, namely a relatively unsophisticated buyer, particularly in cases involving small-dollar consumer transac- for the first step, while the ucc allows the implied 19. uniform revised sales act � 38, 39, reprinted in eliza- surrounding the transaction are in themselves sufficient 11. id. at 998. met with an unfavorable summary judgment, never having the pickup to the defendant's car lot.98 relief. the consumer is unlikely to be able to afford attorney's fees, prescribed time," the buyer could not claim a breach of warranty, (fla. dist. ct. app. 1980). hurdle is clearly evident in the texas appellate court cases the court ini- contract.28 kelly, uniform commercial code drafts 389-90 (1984)(em- commercial building in austin, an "as is" disclaimer, asbestos fire- otherwise have occurred."84 of any lawful term that the parties may desire in a contract for further, the seller should ensure the buyer knows the clause is in cess, and specifically, the landmark texas supreme court opin- ("as is") absolute effectiveness against the buyer. there was no knipp v. weinbaum & its progeny (florida)b. of the dtpa is to protect consumers. the asbestos posed no health hazard, did not need to be removed, available under the dtpa include actual economic damages, and, operating as a matter of law, producing cause as a matter of law, an "as is" clause has an un- ly by the inclusion of the magic words "as is."45 59. id. at 434. over one year stances indicate that a reasonable person in the position buyer paid $7.15 million for the building).83 "as is" clause on two levels, even though the underlying purpose clearly established that the salesman and manager knew the car ates, limited breached the implied warranty of good and workmanlike manner dtpa, and an "as is" clause is involved, the dtpa shifts from 9. id. claiming terms. the revised section 2-316 provided, in relevant seller. approximately two to three years after the purchase, in an ery.10 by clearly requiring reliance (fitness for presumption, perhaps even an operation of law, that the use of "as volume report commented on many provisions of the proposed tained an "as is" disclaimer.62 merchantability in a consumer contract and to disclaim marshall milling company provides an early subject to the provisions of this act. . . there is no im- seller, broomfield.107 an "as is" sale.17 ineffective. the final exception, giving lower courts great latitude, guage contained in section 2-316(3) representation by prudential . . . negates causation essential to ment does not suggest that these terms have significant meaning nesota supreme court enforced a disclaimer because the contract as the movement toward uniform commercial law con- friendly stance toward consumers, especially since the mid dential operated just as the concurring opinion feared it would, the law seemed not only to assume that virtually any disclaimer particular purpose.57 were no implied warranties for the sale. this comment acknowl- cate otherwise," acknowledged that facts can exist that indicate history and development of this section. purpose. 121. id. com/histsales/usai.html (where any right, duty or liability 44. id. to the dtpa. in all claims under the dtpa, the element of pro- 41. id. at 1081. that this language is such as to call "the buyer's attention to the ex- separate occasions.39 for example, when asked in a deposition if he understood the 24,000 miles.51 enced problems with the vehicle, ultimately returning the car and the kind being sold (merchantability). 31. new york law revision commission, report of the new intended to relate only to certain physical defects of the trike.43 dtpa claim and negated the ucc implied warranties.113 who is unacquainted with the trade understanding of ruled that the disclaimer was effective because the buyers failed to to be imposed on the seller, but the disclaimer provision shifted the openshaws paid all but $4,400 of the original $45,000 con- ditional direction and context for consumer transactions. the mid continent aircraft v. curry county spray-d. a "reasonable person" in the buyer's shoes would ignore a warranty these terms. the language of the subsection lends itself joined by justices gammage and spector, realized the serious im- 135. id. sustained severe injuries alleged to be supreme court enforced a disclaimer in the sale of farm machin- to keep the disclaimer from 17. see chaq oil co. v. gardner mach. corp., 500 s.w.2d 877, determined by (1) the relative (2) where the goods are bought by description from a times about the condition of the car -- specifically, if the car had fireproofing.81 118. id. at 4-5. their interaction, and whether some claims fare better as "bare" warranty claims, rather than warranty claims brought in conjunction as before, sellers continued to have an option to exclude subsequent- one of the dressed at the dtpa level, by satisfying one of the prudential case has been widely followed in texas, and has changed the way harsh result for the "traditional consumer," and is likely not the york law revision commission for 1955: study of the uniform have relied upon other information conveyed by the seller. 7. paragraph (a) of subsection (3) deals with general is", "as they stand", "with all faults" or other terms which in com- the third district court of appeals of florida first addressed ly, smith brought dtpa actions against the defendant for breach the court further to be fair, this case may not have presented ideal facts. official comments to section 2-316 added context to the disclaim- to more interstate business, the need for consistent state-to-state 2.316 and its subsections. the inclusion of the term "as is", "as they stand", or the like in a con- dential, they believed an "as is" clause should present a question ment of producing cause and the implied warranties under article the acceptance of the order and delivery of the machinery, that the buyers attention to the exclusion of warranties and the comment removes reliance from the 117. id. at 5. the efforts to establish the ucc, implied warranties continued state entity, legislatively created in 1934, 60. id. (comparing mcnamara,). ing an "as is" warranty disclaimer.119 129. id. the opinion was not unbalanced in favor of buyers, because the tract price, at which time the tibbits secured a judgment for the main questions was whether the action "sounded" in contract or disclaimer and continue to rely on the goods' merchantable qual- because an "as is" clause can both negate implied warranties and mon understanding call the buyers attention to the exclusion of openshaws to sell two homes that mr. tibbits constructed.32 64. id. 101. id. over the next several months, appeals denied certiorari, and affirmed the lower court, relying when a warranty claim is a. prudential and its texas progeny 85. id. at 161(citing mid continent aircraft corp.). faults," and "as they stand" are terms of commercial use, rather attempt to bring a client's warranty claims under the texas deceptive trade practices act ("dtpa").2 stallment sales contract that contained (1984). (6) the [implied] warranties... are not negated or mod- thought of as "bare warranty claims," the court made quick work of finding the disclaimer effective, the sales contract contained an implied warranty disclaimer. the buyer must be aware of the practical effects of such a disclaimer. underlying warranty claim. 45journal of texas consumer law of fact, rather than operate as a matter-of-law, with only three the buyer could not have understood the effect of the disclaimer that was the buyer was not "relying" on any representation of the the proposed ucc allowed sellers to disclaim the implied war- the buyer brought an action enhanced damage recovery. while, initially, this may appear to warranties on sellers of goods, but allowed sellers to limit their establish producing cause, or face sum- this amended comment does provide some helpful insight, and tion. the court created three important exceptions, in which, exceptions.142 further, the when bringing a warranty claim under the dtpa, there vised act spoke directly to "as is" sales: buyer an opportunity to defeat an "as of the buyer would, despite such general language, be in when a party brings a warranty claim in conjunction with the dtpa, an "as is" clause has a double-whammy effect. the "as the entire "as is" disclaimer provision. 138 though no warranty claims were at issue, the texas the texas supreme court quickly set out that proof of pro- 119. id. at 1-2. 8. id. ties at the time the contract was executed," which was affirmed by 81. id. at 160. on which side of the buyer-seller fence you happen to be standing. brought suit, and the trial court found the seller violated the texas disclaimers of implied warranties: what the buyer doesn't know provision suggest an intentional or "as administered" discrimina- was sound precedent, but believed (1978) section 2-316. exclusion or modification of warran- 113. id. at 3. 102. id. 61. see knipp, 351 so.2d 1081 and mcnamara, 388 so.2d 620. claims, as a matter of law, while the court of appeals recognized 2007, no pet. h.)(not reported in s.w.3d). of the ucc.69 subsequently, goldman brought claims of fraud, 47journal of texas consumer law court plainly states that a seller may effectively limit liability by except such as may be written on the face hereof."7 ultimately, kane's education served to also in the lineage of knipp, masker demonstrates the a misunderstanding existed as to the intended meaning or scope fact relying on the merchantable quality of the goods or dresses both the effectiveness of an "as is" disclaimer and the at- the court found that an issue of mate- 3. subsection (2) distinguishes between commercial and not impute knowledge of a commercial trade term to an unsus- re- other understanding exists as to the intended effect of those dis- and require the consumer-plaintiff to show fraud or some other ing changes to the text of section 2-316 and its accompanying and the plaintiff must satisfy the elements of both. when the 13. id. 16. uniform revised sales act � 15, comment 7, reprinted in claim under the dtpa when an "as is" clause is involved. the the court found that by requiring that, in written consumer contracts, the warranty from pro-seller to pro-buyer. when the new york law revision could dupe an unsuspecting buyer by including certain "magic tort. the issue was complicated because the buyer sustained only the monetary remedies contract contained a warranty disclaimer, which stated, "buyer warranty of merchantability to used goods. more importantly the new york commission was concerned that sellers to the buyer, even when specifically asked.136 tion; and the cases have shown a very healthy caution consumers against false, misleading, and deceptive business prac- so harshly for the more traditional consumer, one with less 5. uniform sales act of 1909 � 15, http://www.drbilllong.com/ cases these facts were more favorable, the plaintiff-buyer would still be liability... contract, or otherwise."11 contract to sell or a sale of implication of law, it may ion certainly suggests that the buyer was told the vehicle had no this language allowed courts to go beyond the four-cor- claim and the necessary dtpa element of producing cause. citing section 71 of the uniform sales act.9 warranties and the trial court granted of section 2-316(3)(a) "precludes a finding that automatic abso- 30. revised uniform sales act � 41(2)(a), reprinted in elizabeth step process. first, one must address ucc in regards to disclaim- record, is set forth conspicuously in the recored . . . .27 do not suggest than an "as is" agreement can have this determi- to the seller and the buyer appealed.58 is the ability to consider "[t]he nature of the transaction and the the remedies provided by the dtpa are cumulative, in addition of warranties and makes plain that there is no implied claims. in kane, a tennessee resident purchased a luxury car for the buyer, acting pro-se, some three days after the buyer funded the sale.133 ranty"? this question would be presented by the inclusion of the terms tibbits v. openshaw (utah)a. 56. id. at 434. some of these and further that, producing cause is "proof that an act or omission the uniform commercial code."141 53. id. uniform sales act of 1909 codified these provisions under � 15: feared the ucc would make general trade disclaimers effective at stake in many traditional consumer transactions, the economic the buyer filed suit, in- 23. id. son, jr., a modest proposal regarding the enforceability of "as is" the disclaimer was not a bargained for one week after the exceptions. this is an important matter to consider in warranty knowing buyers should not be penalized by the exclusion of the lution can be achieved in the sale of used consumer goods mere- [which] has effectively eliminated the implied warranties involved person" would have continued to rely on the implied warranties. 29. uniform sales act of 1909 � 71, http://www.drbilllong. stances indicate otherwise" language in section 2-316, and ad- exception operates when a buyer is entitled to inspect "what is similarly, in minneapolis threshing, the north dakota ers could dupe an unsus- cumstances indicate otherwise" language. the court noted, in on a completely different level when dtpa claims are at issue, in knipp, there the openshaws counter-claimed that the tibbits 2008). thought the disclaiming language really meant and whether such 67. id. the tyler court of appeals reversed, relying recovery on . . . dtpa violations."86 consumer advocate to consum- clause was at issue.78 "as is" clause, the buyer-plaintiff stated, "in a way, i did."105 wise"). ducing cause must be satisfied. producing cause is defined as the warranty exclusion language to include the provision, "unless the primarily household use, but the texas dtpa defines consumer 50. id. at 621. to attach to the sale and that "as is," "as they stand," and "with all and "with all faults" are terms of commercial usage. the com- the movement toward uniform commercial law, the american le- faults" are commercial terms, not consumer terms. the relevant tions of the revised uniform sales act were dedicated to implied a used aircraft had properly disclaimed both implied warranties in the third district court of take reliance into consideration, either 42 journal of texas consumer law purpose)(emphasis added). general language to effectively disclaim the implied warranties as the dealership refused, relying on the "as is" provision in the con- 144. smith, 51 s.w.3d 413; broomfield, 2007 wl 677819; kane, b. summary of texas dtpa cases and "as is" clauses some level of surprise or misunderstanding as to the meaning or did not understand the disclaimer he signed, and thus, it was peals have held that the implied warranty of merchantability does 34. id. the defeat any texas dtpa claim by negating producing cause as a who seeks or acquires by purchase or lease, any goods or services, continent aircraft, the texas supreme court held that the seller of 21. see uniform revised sales act � 15, reprinted in elizabeth except that the term does not include a business consumer that warranty that the goods shall be reasonably fit for such strained to give the intended effect to the disclaimer as required tachment of implied warranties to the sale of used goods.38 128. id at 6. fied phrases necessarily exclude implied warranties; this consequence agrees that he did not rely on anything the seller has said or done, attached when the seller dealt in goods of the type purchased. the 88. id. at 162. equation, effectively taking an "anything commercial code at 409 (1955), as reprinted in r.j. robert- was intended, by posing insurmountable hurdles for the con- ii. development of impliedwarranties &their made, the "as is" clause negated the element of producing cause, provide efficient and economical procedures to secure such pro- 46. id. at 1085. during the following days, the buyer experi- sale, the truck would not start.97 a warranty disclaimer is to keep the disclaimer from operating as warranty....25 even when the clause was not intended to do so, by negating the trial court defined very broadly in texas, including "an individual, partner- 122. id. failed, resulting in an off-airport landing and damage to the air- the mcnamara opinion contains a fact pattern that county does not argue that the "as is" disclaimer in this case is the buyer decided to proceed with the purchase, sign- 37journal of texas consumer law cept of the "reasonable person": d. masker v. smith (florida) completely shift the balance, putting the onus on the buyer. million dollars. the concurring opinion recognized that anyone to a buyer not "savvy" to the trade, nothing in the cases above or verbial "nail in the coffin" for this "as is" clause. 135 da three wheeler."40 55. masker v. smith, 405 so.2d 432, 432-33 (fla. dist. ct. app. liability, and the trial court found all defendants liable in tort; b. the revised uniform sales act (1941) the commission studied the first proposed "as is" and second hand sales. it needs no statement 2-316(3) only applies in situations where the buyer knew there pecting consumer. and limit their liability. to that end, sellers used section 71 of 75. id. at � 17.450(b)(1), (d). phasis added). bringing a dtpa claim will now be required to prove fraud, or a disagreement regarding the parties understanding of the dis- 996 (n.d. 1926). while negotiating, the 90. id. against buyers not familiar with the terminology or the effects of goods, because courts have been reluctant to extend the implied would eliminate the implied warranties, but also that implied it was destroyed. sanchez brought suit against the seller, and the and not warranties.46 disclaimer provisions be conspicuously set out in the document. if none of the exceptions are satisfied, an "as is" soon after the purchase, the engine 47. id. the seller testified that the clause related only to minor defects merchantability and fitness for a particular purpose. 1. prudential insurance company of america v. jefferson associ- sion of warranties, makes plain that there is no implied record is required to disclaim the implied warranty of and may do just the opposite of concurrent with the sale, the buyer signed a mid continent, that the plaintiff-buyer "does not argue that warranties and make plain that there is no implied warranty). specifically provided that it "contain[ed] the whole agreement; that disclaims the implied warranty of merchantability rial fact existed as to the intended meaning of the disclaimer survive a summary judgment act, in 1973.71 relief for damages flowing from defects. this unfavorable economic situation provides a strong incentive for zealous practitioners to 63. id. at 310. intended result of the texas supreme court's prudential opinion. state, or a subdivision or agency of this state who seeks or acquires the history and development of the implied warranty disclaimer is the buyer himself."87 the seller refused to comply, and instead, of the disclaimer. mr. masker purchased a used car from smith. been repainted.117 35. id. next, being sold but is impaired by the seller's conduct."89 62. mid continent aircraft corp. v. curry county spraying no representations, covenants or agreements between the parties it was an undisputed fact that ties. the parties as to the meaning of the "as is" clause, because even not affect these, in any ordinary circumstances.16