2006 Ohio Revised Code - 1310.21. (UCC 2A-214) Exclusion or modification of warranties.

§ 1310.21. (UCC 2A-214) Exclusion or modification of warranties.
 

(A)  Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit a warranty shall be construed wherever reasonable as consistent with each other, but, subject to the provisions of section 1310.09 of the Revised Code on parol or extrinsic evidence, negation or limitation is inoperative to the extent that the construction is unreasonable. 

(B)  Subject to division (C) of this section, to exclude or modify the implied warranty of merchantability or any part of it, the language shall mention "merchantability," be by a writing, and be conspicuous. Subject to division (C) of this section, to exclude or modify any implied warranty of fitness, the exclusion shall be by a writing and be conspicuous. Language to exclude all implied warranties of fitness is sufficient if it is in writing, is conspicuous, and states, for example, "There is no warranty that the goods will be fit for a particular purpose." 

(C)  Notwithstanding division (B) of this section, but subject to division (D) of this section, all of the following apply: 

(1) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is" or "with all faults" or by other language that in common understanding calls the lessee's attention to the exclusion of warranties and makes plain that there is no implied warranty, if in writing and conspicuous. 

(2) If the lessee before entering into the lease contract has examined the goods or the sample or model as fully as desired or has refused to examine the goods, there is no implied warranty with regard to defects that an examination in the circumstances should have revealed. 

(3) An implied warranty also may be excluded or modified by course of dealing, course of performance, or usage of trade. 

(D)  To exclude or modify a warranty against interference or against infringement as provided in section 1310.18 of the Revised Code, or any part of it, the language shall be specific, be by a writing, and be conspicuous, unless the circumstances, including course of performance, course of dealing, or usage of trade, give the lessee reason to know that the goods are being leased subject to a claim or interest of any person. 
 

HISTORY: 144 v H 693. Eff 11-6-92.

 

Official Comment

Subsection (2) requires that a disclaimer of the warranty of merchantability be conspicuous and in writing as is the case for a disclaimer of the warranty of fitness; this is contrary to the rule stated in Section 2-316(2) with respect to the disclaimer of the warranty of merchantability. This section also provides that to exclude or modify the implied warranty of merchantability, fitness or against interference or infringement the language must be in writing and conspicuous. There are, however, exceptions to the rule. E.g., course of dealing, course of performance, or usage of trade may exclude or modify an implied warranty. Section 2A-214(3)(c). The analogue of Section 2-312(2) has been moved to subsection (4) of this section for a more unified treatment of disclaimers; there is no policy with respect to leases of goods that would justify continuing certain distinctions found in the Article on Sales (Article 2) regarding the treatment of the disclaimer of various warranties. Compare Sections 2-312(2) and 2-316(2). Finally, the example of a disclaimer of the implied warranty of fitness stated in subsection (2) differs from the analogue stated in Section 2-316(2); this example should promote a better understanding of the effect of the disclaimer. 

These changes were made to reflect leasing practices. E.g., FMC Finance Corp. v. Murphree, 632 F.2d 413, 418 (5th Cir. 1980) (disclaimer of implied warranty under lease transactions must be conspicuous and in writing). The omission of the provisions of Section 2-316(4) was not substantive. Sections 2A-503 and 2A-504.