Sales and Leases | 199
1. Excluding or Modifying Express Warranties To the extent reasonable, any words or conduct relevant to creating an express warranty must be construed consistently with any words or conduct that would tend to negate or limit a warranty. But to the extent consistent construction is unreasonable, words or conduct tending to create an express warranty prevail over words or conduct that would negate or limit the warranty. Put another way, if the contract embraces both (1) words or conduct creating an express warranty and (2) words or conduct negating or limiting warranties, then the former trumps the latter. Thus, the express warranty survives. To protect the seller from false allegations of purely oral warranties, however, this rule is subject to the parol-evidence rule. Accordingly, the parol-evidence rule may exclude words or conduct that would otherwise tend to create an express warranty, in which case the negation or limitation would prevail. [U.C.C. § 2-316(1), cmt. 2 (1951); 2 Hawkland UCC Series § 2-316:1, Westlaw (database updated June 2021); The Parol-Evidence Rule, Express Warranties, supra .] Note : In actual practice, many cases have held that disclaimers prevail over language creating an express warranty, without seriously applying the parol-evidence rule. Close examination of these cases reveals that, at least debatably, this result would have been correct had the courts applied the parol-evidence rule to exclude words or conduct creating an express warranty. But giving disclaimers priority over express warranties without directly and seriously applying the parol-evidence rule is arguably inconsistent with the UCC, and it risks diluting the UCC’s intended protection of express warranties. [ See 2 Hawkland UCC Series § 2-316:1, n. 1, Westlaw (database updated June 2021).]
a. Common Language Tending to Negate or Limit Warranties Examples of common language tending to negate or limit warranties include:
language excluding “all warranties, express or implied,” language indicating that the goods are sold “as is” or “with all faults,” language indicating that “no person has authority to make representations other than those contained in this writing,” language stating that the contract contains “no express warranties,” and a statement that “There are no warranties which extend beyond the description on the face hereof.”
[ See U.C.C. § 2-316(2)-(3)(a) (1951); 2 Hawkland UCC Series § 2-316:1, Westlaw (database updated June 2021).]
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