Product Warranty and Disclaimer Clauses

Summary

These product warranty and disclaimer clauses can be used in a commercial contract to set forth the applicable warranty for goods and the express language required to disclaim the implied warranties of merchantability and fitness for a particular purpose. This template includes practical guidance and drafting notes. Pursuant to the Uniform Commercial Code (UCC), an express warranty may come into existence by (1) a seller's affirmation or promise relating to the goods, (2) a description of the goods, or (3) by a sample or model of the goods, provided that any of these are made a part of the basis of the parties' bargain. U.C.C. § 2-313. An express warranty may be created without express language written into a contract, nor is it required that words such as "warrant," "guarantee" or the like be used. In contrast, an implied warranty is an obligation that arises and is placed on a seller of goods by operation of law or because of a course of dealing, usage of trade or course of performance over a period of time. See U.C.C. § 2-314 concerning the implied warranty of merchantability and U.C.C. § 2-315 regarding the implied warranty of fitness for a particular purpose. Note that express and/or implied warranties are construed as consistent with each other and as cumulative whenever possible. If an interpretation of consistency or cumulative effect is unreasonable, the intention of the parties will determine which warranty is dominant. See U.C.C. § 2-317 for the specific rules used to determine the intention of the parties in applicable circumstances. For a full listing of related contract clauses, see General Commercial Contract Clause Resource Kit. For more information regarding warranties and disclaimer drafting, see Warranty and Disclaimer of Warranty Drafting, Uniform Commercial Code Article 2 Express Warranties, Uniform Commercial Code Article 2 Implied Warranties, and Representations and Warranties Drafting. For consumer product warranties, see Full Consumer Product Warranty and Limited Product Warranty.