CHAPTER 5 OF 7

The Promise Inside the Box

UCC warranties and risk

A familiar label cannot carry a promise the machine does not keep.

LOOK FOR

- Separate express and implied warranties

- Test disclaimer and remedy language

- Keep title apart from risk of loss

CHAPTER 5 / SCENE 1 / THE PURCHASING RECORD · PDF PAGE 31

What They Asked For

Dev had sent the load requirements. Beacon recommended this model and expressly promised the listed performance. The agreement described new units. Aisha links each promised fact to its supporting record.

DEV

I sent the load. Beacon recommended the model and confirmed the specification.

AISHA

Keep the recommendation with the final sale description.

LENA

Would a used unit always be unmerchantable?

DEV

No. These units fail this deal's description and specified performance.

KEEP THIS FACT IN VIEW

The express description is the clearest warranty route. Implied warranties require their own elements.

CHAPTER 5 / SCENE 2 / THE LAWYERS' CONFERENCE · PDF PAGE 32

As Is, Since When?

Salma raises the as-is receipt. Aisha points to the unamended original sale. Even adopted disclaimer language requires separate analysis: implied warranties and express descriptions are not erased in the same way.

SALMA

The receipt says as is.

AISHA

It came after the sale. Show the assent that adopted it.

AISHA

And test whether the clause can reasonably coexist with an express promise of new units.

SALMA

Disclaimer and promised description need separate treatment.

KEEP THIS FACT IN VIEW

The story does not claim all as-is clauses are invalid. This late clause was never assented to.

CHAPTER 5 / SCENE 3 / THE SAME CONFERENCE · PDF PAGE 33

A Remedy Is Another Clause

The signed agreement contains no adopted exclusive-repair term or consequential-loss exclusion. A proposed replacement settlement does. Aisha reviews its scope before Lena decides what rights to exchange.

LENA

This draft says repairs would be our only remedy.

AISHA

That's a new proposed term. Let's read what it would cost us.

LENA

We're buying a solution, not a paragraph we haven't understood.

SALMA

Then identify the terms you would accept.

KEEP THIS FACT IN VIEW

A warranty disclaimer, exclusive remedy, damages exclusion, and settlement release are distinct provisions.

CHAPTER 5 / SCENE 4 / BACK AT THE DOCK · PDF PAGE 34

The Carrier's Dent

One case is also dented. Beacon says the cooperative owns the packs and must argue with the carrier. Aisha checks the destination-delivery term and the separate effect of rightly rejected nonconforming goods.

TESS

They say our name on the invoice makes the dent our problem.

AISHA

An invoice name doesn't answer the risk-of-loss question.

AISHA

The contract requires delivery here. Rightful rejection also matters under Article 2.

LENA

Then we preserve the case and sort responsibility from the agreed terms.

KEEP THIS FACT IN VIEW

Title is not the same as risk of loss. The facts and contract terms determine the allocation.

Contracts Study Notes

Express and implied warranties

UCC 2-313 covers factual affirmations, descriptions, samples, and models made part of the bargain. Merchantability under 2-314 generally requires a merchant seller of that kind and fitness for ordinary purposes. Particular-purpose fitness under 2-315 turns on seller knowledge and buyer reliance on the seller's skill or judgment.

Disclaimers need analysis

Under UCC 2-316, written merchantability disclaimers generally must mention merchantability and be conspicuous; particular-purpose disclaimers generally must be written and conspicuous. As-is language and other recognized methods have their own rules. An express description cannot reasonably be negated by inconsistent disclaimer language. First establish whether the clause was adopted.

Remedies are separate

UCC 2-719 governs limited or exclusive remedies and consequential-loss exclusions. An exclusive remedy may fail of its essential purpose; unconscionability is a distinct question. Courts differ about how failure affects a separate exclusion. Here the original sale adopted neither limitation; the settlement draft is only a proposal.

Risk is not title

Risk allocation depends on agreed shipment or destination terms, delivery circumstances, merchant status, and breach. Under UCC 2-510, sufficiently nonconforming tender giving a rejection right generally leaves risk with the seller until cure or acceptance. Rightful rejection does not authorize careless storage or consumption.

CHANGE ONE FACT

Change one fact: a used pack satisfies every agreed specification and was clearly sold as used. Does prior use alone prove breach of an express promise of new condition?

A. Yes. Used goods are never lawful goods.

B. No. There is no promise of new condition in the changed deal.

C. Yes. Every equipment sale guarantees unused goods.

Answer: B. Warranty analysis begins with the actual bargain. The original story expressly promises new units. The changed story does not. Ordinary fitness, other promised facts, defects, and any valid disclaimer still require separate analysis.

UCC 2-313 / UCC 2-314 / UCC 2-315 / UCC 2-316 / UCC 2-509 / UCC 2-510 / UCC 2-719