California Civil Jury Instructions (CACI)

1241. Affirmative Defense - Exclusion or Modification of Express Warranty

[Name of defendant] claims that [he/she/it] is not responsible for any harm to [name of plaintiff] because [name of defendant], by words or conduct, limited [his/her/its] representations regarding the [product]. To succeed, [name of defendant] must prove that [he/ she/it] clearly limited the representations regarding [insert alleged warranty, e.g., “seaworthiness”].

New September 2003

Directions for Use

Limitation can be by words or conduct.

Sources and Authority

  • Commercial Code section 2316(1) provides: “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 division on parol or extrinsic evidence (Section 2202) negation or limitation is inoperative to the extent that such construction is unreasonable.”
  • “Although section 2316 has drawn criticism for its vagueness, its purpose is clear. No warranty, express or implied, can be modified or disclaimed unless a seller clearly limits his liability.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 118—119 [120 Cal.Rptr. 681, 534 P.2d 377], internal citations omitted.)
  • “Because a disclaimer or modification is inconsistent with an express warranty, words of disclaimer or modification give way to words of warranty unless some clear agreement between the parties dictates the contrary relationship. At the very least, section 2316 allows limitation of warranties only by means of words that clearly communicate that a particular risk falls on the buyer.” (Hauter, supra, 14 Cal.3d at p. 119, internal citation omitted.)
  • The Uniform Commercial Code Comment to section 2316 states: “This section is designed principally to deal with those frequent clauses in sales contracts which seek to exclude ‘all warranties, express or implied.’ It seeks to protect a buyer from unexpected and unbargained language of express warranty …”
  • “[A]ny disclaimer or modification must be strictly construed against the seller.” (Hauter, supra, 14 Cal.3d at p. 119.)
  • “Strict construction against the person who has both warranted a particular fact to be true and then attempted to disclaim the warranty is especially appropriate in light of the fact that ‘[a] disclaimer of an express warranty is essentially contradictory, …’ ” (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 958 [199 Cal.Rptr. 789], internal citation omitted.)
  • “A disclaimer of warranties must be specifically bargained for so that a disclaimer in a warranty given to the buyer after he signs the contract is not binding.” (Dorman v. International Harvester Co. (1975) 46 Cal.App.3d 11, 19—20 [120 Cal.Rptr. 516].)
  • “Interpretation of a written document, where extrinsic evidence is unnecessary, is a question of law for the trial court to determine.” (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1095 [196 Cal.Rptr. 531], internal citations omitted.)

Secondary Sources

California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.23 (Matthew Bender)