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As with the implied warranty of merchantability, there are generally two ways to exclude or modify the implied warranty of fitness for a particular purpose. Here again, 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. [ See U.C.C. § 2-316(2)-(3)(a) (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 Fitness for a Particular Purpose by Conspicuous Written Language One way for the seller to exclude or modify the implied warranty of fitness for a particular purpose is to do so inwriting . Oral disclaimers, apart from those utilizing “as is” or similar language (see below), are ineffective. Additionally, here again, the writing must be conspicuous . However, here, the language need not mention fitness or fitness for a particular purpose. Indeed, more generalized language of disclaimer will suffice, if conspicuous, such as “There are no warranties which extend beyond the description on the face hereof.” [U.C.C. § 2-316(2) (1951); 2 Hawkland UCC Series § 2-316:3, Westlaw (database updated June 2021).] b. Excluding or Modifying the Implied Warranty of Fitness for a Particular Purpose by “As Is” or Similar Language As with the implied warranty of merchantability, the seller may, unless the circumstances indicate otherwise, exclude or modify the implied warranty of fitness for a particular purpose 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).] Here, this specific language need not be in writing, though practically speaking, it should be. [ See 2 Hawkland UCC Series § 2-316:3, Westlaw (database updated June 2021); Excluding or Modifying the Implied Warranty of Merchantability by “As Is” or Similar Language, supra .] 4. Conspicuous Defined In the UCC, a term is conspicuous if it is “so written, displayed, or presented that a reasonable person against [whom] it is to operate ought to have noticed it.” [U.C.C. § 1-201(b)(10) (2001).] The essence of conspicuousness is contrast. That is, the terms should stand out to call the reader’s attention to them.
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