Okla. Stat. tit. 12A § 2-316

Current through Laws 2024, c. 453.

Section 2-316 - Exclusion or Modification of Warranties

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but, subject to the provisions of this Article on parol or extrinsic evidence (Section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

(3) Notwithstanding subsection (2)

(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "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; and

(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and

(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade; and

(d) the implied warranties of merchantability and fitness do not apply to the sale or barter of livestock or its unborn young, provided that seller offers sufficient evidence that all state and federal regulations pertaining to the health of such animals were complied with; provided, however, that the implied warranties of merchantability and fitness shall apply to the sale or barter of horses.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (Sections 2-718 and 2-719).

Okla. Stat. tit. 12A, § 2-316

Laws 1961, p. 82, § 2-316; Amended by Laws 1981, HB 1184, c. 181, § 1, eff. 10/1/1981.

Oklahoma Code Comment

(1) Previous Oklahoma law is probably in accord. Oklahoma courts have upheld a disclaimer clause for many years, provided that it is part of the contract of sale. Reynolds v. Binding-Stevens Seed Co., 179 Okl. 628, 67 P. 2d 440 (1937) (disclaimer contained in numerous letters sent by the seller to the buyer, held: part of the contract of sale); Pennington Grocery Co. v. Wood & Co., 97 Okl. 220, 223 P. 368 (1924) (disclaimer contained in the invoice sent out the delivery of goods, held: not a part of the contract, and therefore inoperative); St. Louis Cordage Mills v Western Supply Co., 54 Okl. 757, 154 P. 646 (1916) (disclaimer written on a card affixed to the goods, held: not effective in absence of proof that the purchaser saw it or it was called to his attention); Jackson v. Gifford Okl., 264 P.2d 313 (1954) (disclaimer on a "load out sheet" given to the purchaser after the completed auction sale, held: not part of the contract of sale). The Oklahoma court has been quick to find the disclaimer unreasonable, or that the limiting clause was waived by the seller. Therefore, in Fairbanks, Morse & Co. v. Miller, 80 Okl. 265, 195 P. 1083 (1921), the court found a clause limiting the buyer's remedy to the replacement of defective parts ineffective when the goods delivered were totally worthless. The court said: "A contract cannot be construed to mean that a seller can deliver junk and then fulfill his obligation by replacing parts." In C. I. T. Corporation v. Shogren, 176 Okl. 388, 55 P.2d 956 (1936) the contract granted the buyer five days to inspect the goods, and notify the seller of defects. A defect developed after 30 days of use, and the court permitted recovery, saying that the clause did not limit the application of the implied warranty of fitness for use as to defects which could not have been detected sooner.

Oklahoma has also held that the presence of an express warranty does not preclude proof of implied warranties unless the two are inconsistent with each other. Fairbanks, Morse & Co. v. Miller, 80 Okl. 265, 195 P. 1083 (1921); Goldstein v. Welded Products Co., 196 Okl. 219, 164 P.2d 229 (1946).

(2) This section is new, and there was no comparable previous Oklahoma law. Note that a disclaimer of the warranty of merchantability may be verbal but the exclusion or modification of the warranty of fitness must be in writing. Also note that to disclaim the warranty of merchantability, merchantability must be specifically mentioned, but a general disclaimer is sufficient to repudiate fitness for a particular purpose. These statements, however, are qualified by paragraph (3).

(3) (a) Oklahoma has had no previous comparable law.

(b) Previous Oklahoma law is in accord. Tibbets & Pleasant, Inc. v. Town of Fairfax, 145 Okl. 211, 292 P. 9 (1930) (sale of used oil spreader which the buyer who was an expert, examined before purchase); Dunn v. Vaughan, 120 Okl. 240, 251 P. 472 (1928) (purchase of a tractor which the buyer, who was experienced with machines and a former automobile dealer, tried out before purchase); Benjamin Colitz & Co. v. Davis, 177 Okl. 607, 62 P.2d 67 (1936) (purchase of used pipe which an agent of the buyer inspected before purchase); Hyde Const. Co. v. Stevenson, 181 Okl. 8, 72 P.2d 354 (1937) (purchase of gravel which the purchaser tested before purchase). But the buyer was bound only by the defects which he could have ascertained by the inspection. In Markle v. Stekoll, 112 Okl. 287, 240 P. 1044 (1925) the purchaser ordered 2000 feet of pipe, and the seller delivered sections of pipe with different threads so that the sections could not be joined. The court held that inspection did not preclude recovery, for this was a defect which could not be determined without attempting to join the pipes.

(4) This will be discussed under sections 2-718 and 2-719 .