Fitness warranties can sometimes be excluded
The implied warranty of fitness for a particular purpose is not unavoidable in every transaction.
A seller may attempt to:
- Exclude the implied fitness warranty entirely
- Limit its duration
- Limit available remedies
- Use as-is or with-all-faults language
The exclusion generally must be written
Under UCC § 2-316, an exclusion or modification of an implied warranty of fitness generally must be in writing.
Review whether the language appears in:
- The signed sales agreement
- The quotation
- The purchase order
- The checkout terms
- The invoice
- The written warranty
- A document first supplied after purchase
Timing matters because a term delivered only after the agreement may raise contract-formation questions.
The exclusion generally must be conspicuous
A written fitness disclaimer generally must be conspicuous.
Features relevant to conspicuousness may include:
- A clear heading
- Readable type
- Bold or capital letters
- Contrasting text or background
- Placement near the signature or purchase terms
- Separation from unrelated language
A disclaimer buried in dense text or hidden behind unexpected links may present a different issue from one clearly displayed before the buyer agrees.
Does the disclaimer need to use the word fitness?
UCC § 2-316 does not use the same express word requirement for fitness that it uses for merchantability.
The section provides an example of general language stating that there are no warranties extending beyond the description on the face of the agreement.
The exact wording should be evaluated for whether it clearly excludes or modifies implied fitness coverage.
As-is and with-all-faults language
UCC-style rules may allow phrases such as as is or with all faults to exclude implied warranties when the circumstances make that meaning clear.
Review:
- Whether the language was clearly displayed
- Whether it was disclosed before purchase
- Whether state law permits it
- Whether a written warranty was provided
- Whether a service contract was sold
- Whether the seller made conflicting suitability promises
Seller recommendations may conflict with disclaimers
A transaction may contain both broad disclaimer language and a specific seller recommendation.
For example, the seller may:
- Disclaim all implied fitness warranties
- Then specifically state that a product will meet the buyer's disclosed requirements
The complete agreement and applicable law determine how apparently inconsistent language and conduct are interpreted.
Express warranties remain a separate issue
A specific factual promise may create an express warranty even when an implied warranty is disclaimed.
Possible express promises include:
- This part fits the identified model.
- This material withstands the stated temperature.
- This equipment will handle the specified load.
- This coating is compatible with the disclosed surface.
Express and implied warranties should be reviewed separately.
Written consumer warranties and federal restrictions
Federal warranty law generally prohibits a supplier from disclaiming implied warranties on a consumer product when the supplier provides a written warranty for that product.
A supplier offering a limited written warranty may sometimes limit implied-warranty duration when the limitation is clear, prominent, reasonable, and permitted by state law.
Identify who issued the written warranty and who attempted to use the disclaimer.
Service contracts and implied warranty disclaimers
Federal law can also restrict implied-warranty disclaimers when the supplier enters into a qualifying service contract covering the consumer product.
Review:
- Who sold or entered into the service contract
- When it was purchased
- Which systems or components it covers
- Whether the seller acted only as another company's agent
- Whether the sales agreement also used an implied-warranty disclaimer
State-law restrictions
State law may provide stronger protections than the general UCC wording.
A state may:
- Restrict implied-warranty disclaimers in consumer sales
- Regulate as-is transactions
- Require specific language or formatting
- Limit duration restrictions
- Protect certain products or buyers
- Treat some terms as unconscionable
A disclaimer effective in one jurisdiction may not have the same effect in another.
Buyer examination
UCC § 2-316 also addresses buyer examination of goods, samples, or models.
Examination may affect implied warranties concerning defects that the examination ought to have revealed.
A compatibility or application problem may not always be discoverable through ordinary visual inspection, especially when technical testing is required.
Commercial transactions
Business contracts often include detailed warranty exclusions, technical specifications, acceptance testing, and remedy limitations.
Review:
- Master agreements
- Purchase orders
- Quotations
- Incorporated terms
- Priority-of-terms provisions
- Testing and acceptance requirements
Competing forms may contain inconsistent warranty language.
Disclaimer vs reliance disclaimer
A seller may state that it does not select goods and that the buyer is responsible for determining suitability.
This may be relevant to whether buyer reliance existed, even when it is not framed as a direct warranty exclusion.
Compare the disclaimer with the seller's actual conduct:
- Did the seller nevertheless select the product?
- Did it confirm compatibility?
- Did it provide technical recommendations?
- Did the buyer rely on those statements?
Disclaimer vs remedy limitation
A seller may recognize a warranty but limit the remedy to repair, replacement, repayment, or another option.
| Provision | General purpose |
|---|---|
| Warranty disclaimer | Attempts to prevent the warranty from applying |
| Duration limitation | Attempts to shorten the warranty period |
| Remedy limitation | Limits available repair, replacement, refund, or damages |
| Reliance disclaimer | States that product selection remains the buyer's responsibility |
How to review a fitness disclaimer
- Collect every sales and warranty document.
- Find the exact implied-warranty language.
- Confirm that the exclusion is written.
- Review headings, font, contrast, and placement.
- Determine when the term was disclosed.
- Check for as-is or with-all-faults language.
- Preserve seller recommendations and suitability statements.
- Review written warranties and service contracts.
- Check state-specific restrictions.
- Separate disclaimer, duration, reliance, and remedy provisions.
Fitness disclaimer: key takeaway
An implied warranty of fitness may sometimes be excluded, but the exclusion generally must be written and conspicuous under the UCC framework.
Review the complete transaction, including seller recommendations, express promises, as-is wording, written warranties, service contracts, state restrictions, and the timing of disclosure.
Review a particular-purpose purchase
Use the Particular-Purpose Warranty Reliance Checker
Review the buyer's purpose, seller knowledge, seller judgment, buyer reliance, suitability, disclaimer language, evidence, and notice.
Frequently asked questions
Must a fitness warranty disclaimer be written?
Under the UCC framework, an exclusion of an implied warranty of fitness generally must be in writing.
Must the disclaimer be conspicuous?
Yes, the written exclusion generally must be presented conspicuously.
Can as-is language exclude fitness coverage?
Potentially, where the circumstances and applicable state law permit it.
Can a seller disclaim fitness while giving a written warranty?
Federal law generally restricts implied-warranty disclaimers by a supplier that provides a written consumer-product warranty.
Does a disclaimer erase specific seller promises?
Not automatically. Specific factual statements may create separate express-warranty issues.