M Civ JI 140.44 Contract Action - UCC: Implied Warranty of Merchantability - Elimination or Modification

The seller claims that the implied warranty of merchantability was changed or eliminated.

*(If, before entering the contract, the buyer examined the goods or the sample or model as fully as [ he / she / it ] desired, or refused to examine the goods, there is no implied warranty regarding defects that would have been discovered by an examination.)

*(Unless the circumstances indicate otherwise, the warranty is eliminated by expressions like “as is” or “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.)†

The implied warranty of merchantability may *(also) be changed or eliminated by:

(a) *(specific language, if it includes the word “merchantability”‡);

(b) *(the course of prior dealings between the buyer and seller);

(c) *(the way the buyer and seller have performed this contract);

(d) *(custom in the trade).

Note on Use

*The sentences and words in parentheses should be used only if applicable to the case.

†To be effective to change or eliminate the warranty of merchantability, in a writing expressions like “as is” or “with all faults” must be conspicuous. Lumber Mutual Insurance Co v Clarklift, Inc, 224 Mich App 737; 569 NW2d 681 (1997). Whether the expression is conspicuous is a question of law for the court. MCL 440.1201(10).

‡To be effective to change or eliminate the warranty of merchantability, specific written language that includes the word “merchantability” must be conspicuous. Whether the written language is conspicuous is a question of law for the court. MCL 440.1201(j).

Comment

MCL 440.2316.

The Magnuson-Moss Warranty Act, 15 USC§2301 et seq., and the Michigan Consumer Protection Act, MCL 445.903, also govern the validity of some disclaimers of implied warranties of merchantability and fitness.

Michigan cases on exclusion and modification of implied warranties include S C Gray, Inc v Ford Motor Co, 92 Mich App 789, 807–808; 286 NW2d 34, 41–42 (1979) (where writings conflict as to warranties, UCC warranties are in effect); Mallory v Conida Warehouses, Inc, 134 Mich App 28; 350 NW2d 825 (1984) (disclaimer tag insufficient to exclude warranty); McGhee v GMC Truck & Coach Division, General Motors Corp, 98 Mich App 495; 296 NW2d 286 (1980) (disclaimers of warranty in documents of sale are sufficient); Ambassador Steel Co v Ewald Steel Co, 33 Mich App 495; 190 NW2d 275 (1971) (seller of noncommercial-quality steel breached warranty of fitness for ordinary purpose; warranty not excluded where buyer neither inspected nor refused to inspect).

There are special rules on implied warranties for cattle, sheep, and hogs. MCL 440.2316(3)(d).

History

M Civ JI 140.44 was added January 1987. Amended November 1999.