Disclaimer of Warranties: What You Are Giving Up
What Is a Disclaimer of Warranties?
A disclaimer of warranties is a contract provision where the seller or service provider explicitly states that they are not making certain guarantees about their product or service. These disclaimers attempt to eliminate the implied warranties that would otherwise apply by default under the law.
You have likely seen language like: "THE PRODUCT IS PROVIDED 'AS IS' WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE."
Why Warranty Disclaimers Are Common
- Software and SaaS agreements — Nearly every software license includes broad warranty disclaimers.
- Commercial equipment sales — Sellers prefer to limit exposure to defect claims.
- Used goods — Sellers disclaim warranties on pre-owned items to avoid liability for existing wear.
- Professional services — Consultants and contractors may disclaim implied warranties about outcomes.
Legal Requirements for Valid Disclaimers
The UCC imposes specific rules for disclaiming implied warranties:
- Merchantability — The disclaimer must mention the word "merchantability" and be conspicuous (bold, capitalized, or otherwise prominent).
- Fitness for a particular purpose — Must be in writing and conspicuous.
- General disclaimers — "As-is" or "with all faults" language can disclaim all implied warranties if clear and prominent.
A disclaimer buried in fine print or hidden in boilerplate may not be enforceable.
When Warranty Disclaimers Fail
- The disclaimer is not conspicuous enough
- State consumer protection laws prohibit the disclaimer
- The disclaimer contradicts an express warranty in the same contract
- The seller committed fraud or concealed known defects
- The Magnuson-Moss Warranty Act applies (consumer products with written warranties)
What to Look For
- ALL CAPS warranty sections — these are intentionally conspicuous
- Language excluding "consequential" or "incidental" damages
- Remedy limitations (repair or replace only)
When to Consult a Lawyer
If a product or service fails and the seller points to a warranty disclaimer, consider consulting an attorney. Disclaimers must meet specific legal standards and may not apply in your situation.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.