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Can Implied Warranty Protection Be Disclaimed?

An implied warranty is a common law contract term that encompasses a series of representations or assurances that are inferred when a merchant sells a product to a consumer. These presumptions are made because of the facts and circumstances surrounding the sale transaction for the particular product. The assurances are known as warranties, regardless of whether a seller makes them orally or in written form. Types of implied warranties include:

  • implied warranty of fitness for a particular purpose
  • implied warranty of merchantability (for goods)
  • implied warranty of workmanlike quality (for services)
  • implied warranty of habitability for a house

How Can Manufacturers Disclaim Implied Warranties?

Because there is no uniform federal product liability law, individual state laws dictate how a product manufacturer can disclaim implied warranties. The rules for how manufacturers can make such disclaimers are highly technical and specific, so as to protect the consumer as much as possible. For example, such a claim must use specific, bold, conspicuous text. If a product maker disclaims the implied warranty known as the warranty of fitness for a particular purpose, then it must be done in an express manner by its verbatim name, for instance.

How Do Disclaimed Implied Warranties Affect Consumers?

If a manufacturer disclaims every form of implied warranty, a consumer cannot obtain any recovery for warranty breaches. The practical impact of a disclaimer of the implied warranty of fitness for particular purpose means that the risk of unfitness of the product at issue is passed back to the consumer from the seller. That said, consumers can still challenge the adequacy of disclaimers, so it is prudent to seek the consult of an attorney before making any such detrimental or final determinations. An attorney will be able to best judge and ascertain whether the particular text used is adequate to effectively disclaim all implied warranties.

Role of the Uniform Commercial Code

The Uniform Commercial Code (UCC) permits sellers of goods to disclaim the implied warranty of merchantability. The UCC requires the disclaimer to be in conspicuous type. The disclaimer must expressly include the term "merchantability," as well. In some states, the UCC is interpreted in such a way that disclaimers are not allowed in any way, shape, or form. For example, because of the strong orientation in favor of consumer protection and public policy in Massachusetts, any disclaimers on implied warranties for household goods are deemed unlawful and are prohibited.

If you or someone you know has been injured by use of a defective product or component, it is prudent to promptly seek counsel from a product liability attorney. Further, time may be of the essence in making a claim for any potential recovery.