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mentions merchantability, and because it is in all capital letters, it is conspicuous. [ Adapted from United Contractors Midwest, Inc. v. Boart Longyear Co. , No. 07-3318, 2010 WL 1241884 (C.D. Ill. 2010).] Compare : A buyer contracted to purchase large quantities of salt from a seller. The written agreement contained the following language: “THERE IS NO UNDERSTANDING, REPRESENTATION, OR WARRANTY OF ANY KIND EXPRESSED OR IMPLIED, NOT EXPRESSLY SET FORTH HEREIN.” Shortly after taking delivery of the salt, the buyer learned that the salt was unusable and, thus, sued the seller for, among other things, breach of the implied warranty of merchantability. The seller argued that the quoted language effectively disclaimed the implied warranty of merchantability. Here, though, the seller was wrong. Certainly, the language was conspicuous because it was in all capital letters. Even so, the language did not mention merchantability. Thus, the language failed as a disclaimer of the implied warranty of merchantability. [ Adapted from US Salt, Inc. v. Broken Arrow, Inc. , Civ. No. 07–1988 (RHK/JSM), 2008 WL 398818 (D. Minn. Feb. 11, 2008).]
b. Excluding or Modifying the Implied Warranty of Merchantability by “As Is” or Similar Language
The second way to exclude or modify the implied warranty of merchantability is by language indicating that the buyer takes the goods “as is,” “with all faults,” or a similar expression that, in the words of § 2-316, “in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.” [U.C.C. § 2-316(3)(a) (1951).] Notably, this specific sort of language need not mention merchantability to effectively disclaim the implied warranty of merchantability. However, this rule applies only if the circumstances do not indicate otherwise. Precisely when the circumstances indicate otherwise is not entirely clear from the cases. This result may follow if “as is” type language would not suffice to call the buyer’s attention to the exclusion of warranties ( e.g. , a trade usage that the seller will repair defective goods despite the language), or perhaps if the seller makes a fraudulent misrepresentation. [ See 2 Hawkland UCC Series § 2-316:3, Westlaw (database updated June 2021).] Note : Technically, “as is” or similar language need not be in writing to be effective. However, as a practical matter, it probably should be. In addition, the UCC does not expressly require that this language be conspicuous. Even so, many courts have held that it must be conspicuous. [ See 2 Hawkland UCC Series § 2-316:3, Westlaw (database updated June 2021).]
3. Excluding or Modifying the Implied Warranty of Fitness for a Particular Purpose
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