CACI No. 1241. Affirmative Defense - Exclusion or Modification of Express Warranty

Judicial Council of California Civil Jury Instructions (2023 edition)

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1241.Affirmative Defense - Exclusion or Modification of Express
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for any harm to [name of plaintiff] because [name of
defendant], by words or conduct, limited [his/her/nonbinary pronoun/its]
representations regarding the [product]. To succeed, [name of defendant]
must prove that [he/she/nonbinary pronoun/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
Creation of Express Warranty by Words or Conduct. California Uniform
Commercial Code section 2316(1).
The California 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 . . . .”
“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.)
“[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
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)

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