California Civil Jury Instructions (CACI)

3221. Affirmative Defense - Disclaimer of Implied Warranties

[Name of defendant] claims that it did not breach any implied warranties because the [consumer good] was sold on an "as is" or "with all faults" basis. To succeed, [name of defendant] must prove both of the following:

1. That at the time of sale a clearly visible written notice was attached to the [consumer good]; and

2. That the written notice, in clear and simple language, told the buyer each of the following:

a. That the [consumer good] was being sold on an "as is" or "with all faults" basis;

b. That the buyer accepted the entire risk of the quality and performance of the [consumer good]; and

c. That if the [consumer good] were defective, the buyer would be responsible for the cost of all necessary servicing or repair.

Directions for Use

If the consumer goods in question were sold by means of a mail-order catalog, the instruction must be modified in accordance with Civil Code section 1792.4(b).

In addition to sales of consumer goods, the Consumer Warranty Act applies to leases-see Civil Code sections 1791(g)-(i) and 1795.4. This instruction may be modified for use in cases involving leases of consumer goods.

Sources and Authority

Civil Code section 1792.3 provides: "No implied warranty of merchantability and, where applicable, no implied warranty of fitness shall be waived, except in the case of a sale of consumer goods on an 'as is' or 'with all faults' basis where the provisions of this chapter affecting 'as is' or 'with all faults' sales are strictly complied with."

"Unless specific disclaimer methods are followed, an implied warranty of merchantability accompanies every retail sale of consumer goods in the state." (Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 619 [39 Cal.Rptr.2d 159].)

Civil Code section 1791.3 provides: "[A] sale 'as is' or 'with all faults' means that the manufacturer, distributor, and retailer disclaim all implied warranties that would otherwise attach to the sale of consumer goods under the provisions of this [act]."

Civil Code section 1792.4 provides:

(a) No sale of goods, governed by the provisions of this [act], on an "as is" or "with all faults" basis, shall be effective to disclaim the implied warranty of merchantability or, where applicable, the implied warranty of fitness, unless a conspicuous writing is attached to the goods which clearly informs the buyer, prior to the sale, in simple and concise language of each of the following:

(1) The goods are being sold on an "as is" or "with all faults" basis.

(2) The entire risk as to the quality and performance of the goods is with the buyer.

(3) Should the goods prove defective following their purchase, the buyer and not the manufacturer, distributor, or retailer assumes the entire cost of all necessary servicing or repair.

(b) In the event of sale of consumer goods by means of a mail order catalog, the catalog offering such goods shall contain the required writing as to each item so offered in lieu of the requirement of notification prior to the sale.

Civil Code section 1793 provides, in part: "[A] manufacturer, distributor, or retailer, in transacting a sale in which express warranties are given, may not limit, modify, or disclaim the implied warranties guaranteed by this chapter to the sale of consumer goods."

Civil Code section 1792.5 provides: "Every sale of goods that are governed by the provisions of this [act], on an 'as is' or 'with all faults' basis, made in compliance with the provisions of this [act], shall constitute a waiver by the buyer of the implied warranty of merchantability and, where applicable, of the implied warranty of fitness."

Civil Code section 1795.4(e) provides: "A lessor who re-leases goods to a new lessee and does not retake possession of the goods prior to consummation of the re-lease may, notwithstanding the provisions of Section 1793, disclaim as to that lessee any and all warranties created by this chapter by conspicuously disclosing in the lease that these warranties are disclaimed."

Secondary Sources

3 Witkin, Summary of California Law (9th ed. 1987) Sales, § 87

1 California UCC Sales & Leases (Cont.Ed.Bar 2002) Warranties, §§ 3.53- 3.61

California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.34[3], Ch. 8, Defenses, § 8.07[5][c] (Matthew Bender)

44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51 (Matthew Bender)

20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)

5 Bancroft-Whitney's California Civil Practice: Business Litigation (1993) Consumer Warranties, §§ 53:8-53:9, pp. 13-14

(New September 2003)