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Example : A motorcyclist wore a helmet while riding his motorcycle off-road. The motorcycle impacted a large bump, hurling the motorcyclist into the air at great velocity. A moment later, the motorcyclist hit the ground headfirst, breaking his neck. This injury left the motorcyclist a quadriplegic. The motorcyclist promptly sued the helmet’s manufacturer, alleging (among other things) breach of an express warranty. Namely, the helmet’s owner’s manual (incorporated by reference into the contract) represented that the helmet’s main function was to “reduce the harmful effects of a blow to the head,” though no helmet could prevent all injury. The agreement itself purported to limit all express warranties to a five- year repair-or-replace warranty. On largely similar facts, a state high court held that the manual’s representation about reducing the harm from a blow to the head created an express warranty. That warranty, in turn, prevailed over the five-year repair-or-replace limitation in the agreement. [ Adapted from Bell Sports, Inc. v. Yarusso , 759 A.2d 582 (Del. 2000).] 2. Excluding or Modifying the Implied Warranty of Merchantability In general, there are two ways to exclude or modify the implied warranty of merchantability. In practice, courts tend to construe implied-warranty disclaimers quite narrowly and stingily against the seller, because these rules’ purpose is to make clear to the buyer that he is assuming the risk as to the goods’ quality. Thus, in drafting disclaimers, the seller (or her lawyer) must take great care to follow these rules meticulously and precisely. [ See U.C.C. § 2- 316(2) (1951); 2 Hawkland UCC Series § 2-316:3, Westlaw (database updated June 2021). But see Excluding or Modifying Implied Warranties by Course of Dealing, Course of Performance, or Usage of Trade, infra .] a. Excluding or Modifying the Implied Warranty of Merchantability by Language Mentioning Merchantability One way to disclaim the implied warranty of merchantability is by language, whether written or oral, that mentions merchantability . If the language is written (and it often is), it must be conspicuous . [U.C.C. § 2-316(2) (1951); Conspicuous Defined, infra .] Example : A buyer contracted to purchase a highway grinder from a manufacturer. A highway grinder is a large vehicle loaded with a machine that produces wet asphalt and pours it behind the vehicle as the vehicle moves along. The agreement contained the following language: “THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY EITHER PARTY TO THE OTHER PARTY EXCEPT AS PROVIDED HEREIN, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY.” This written language suffices to disclaim the implied warranty of merchantability. The language
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