RSA 382-A:2-316 · Exclusion or Modification of Warranties

382-A:2-316 Exclusion or Modification of Warranties. –

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(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.

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(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 of the face hereof."

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(3)

Notwithstanding subsection (2)

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(a)

unless the circumstances indicate otherwise, implied warranties may be 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

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(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

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(c)

an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

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(4)

Notwithstanding the provisions of subsections (2) and (3) of this section, in any case in which goods are purchased primarily for personal, family or household use and not for commercial or business use (a consumer sale), disclaimers of the warranty of merchantability or fitness for a particular purpose shall not be effective to limit the liability of merchant sellers, unless the seller provides the buyer with a conspicuous writing which must be signed by the buyer and which clearly informs the buyer, prior to or at the time of the sale, in simple and concise language of each of the following:

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(a)

The goods are being sold on an "as is" or "with all faults" basis;

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(b)

The entire risk as to quality and performance of the goods is with the buyer; and

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(c)

If the goods prove defective after purchase, the buyer, not the manufacturer, distributor or retailer, shall assume the entire cost of all necessary servicing or repair. If a consumer sale is made by means of a mail order catalog, the catalog may contain the required writing in lieu of the requirement of notification prior to the sale. The requirement that the writing be signed by the buyer shall not apply to such sales by means of a mail order catalog.

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(5)

Remedies for breach of warranty may be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification or limitation of remedy (Sections 2-718 and 2-719). Source. 1959, 247:1. 1973, 568:1. 1983, 293:1, eff. Aug. 17, 1983.

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