Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

تمرين 33

FACTS In 1993, Womco, Inc. purchased through Price, a dealer, thirty 1993 International model 9300 tractor trucks manufactured by Navistar. Also, in 1993, C. L. Hall purchased sixteen 1994 International model 9300 tractor trucks also manufactured by Navistar through Mahaney, another dealer. Almost immediately after the trucks were put into service, Womco and Hall (plaintiffs) each had problems with their trucks' engines overheating. As the problems occurred, plaintiffs took their trucks, which were still covered under warranty, to their dealerships for service related to the overheating problem. Although repeated attempts were made, the dealerships were unable to correct the problem. Subsequently it was discovered that the trucks' radiators were unusually small and were insufficient to cool the engine.
Womco and Hall filed suit against Navistar, Price, and Mahaney (defendants). The trial court granted the defendants' motion for summary judgment based on their affirmative defenses of disclaimer of warranty. Womco and Hall appealed.
DECISION Summary judgment for defendants is reversed, and case remanded.
OPINION Griffith, J. *** [The] Appellees contend that [the] implied warranties were disclaimed. The Texas Uniform Commercial Code allows sellers to disclaim both the implied warranty of merchantability as well as the implied warranty of fitness for particular purpose. [UCC] § 2.316(b), [citation]. In order to disclaim an implied warranty of merchantability in a sales transaction, the disclaimer must mention the word ''merchantability.'' The disclaimer may be oral or written, but if in writing, the disclaimer must be conspicuous. [Citation]; [UCC] § 2.316(b). To disclaim an implied warranty of fitness for a particular purpose, the disclaimer must be in writing and must be conspicuous. [UCC] § 2.316(b); [citation]. Whether a particular disclaimer is conspicuous is a question of law to be determined by the court. [Citation]. A term or clause is conspicuous if it is written so that a reasonable person against whom it is to operate ought to have noticed it. [UCC] § 1.201(10); [citation]. Language is ''conspicuous'' if it is in larger type or other contrasting font or color. [Citation]. Conspicuousness is not required if the buyer has actual knowledge of the disclaimer. [Citation].
***
Further, Appellants argue that Appellees were required to offer proof of the context of the purported disclaimers, contending that in order for a disclaimer of an implied warranty to be effective, the plaintiffs must have had an opportunity to examine it prior to consummation of the contract for sale. [Citation]. *** In Dickenson [citation], the court held that a disclaimer of an express warranty was ineffective where the buyer was not given the opportunity to read the warranty or warranties made until after the contract is signed. Although the instant case concerns a converse situation to Dickenson, the rationale applied by the Dickenson court is helpful. One of the underlying purposes of [UCC section 2.316 is to protect a buyer from surprise by permitting the exclusion of implied warranties. [UCC] § 2.316, comment 1. We fail to see how section [UCC] 2.316 can fulfill such a purpose unless a disclaimer is required to be communicated to the buyer before the contract of sale has been completed, unless the buyer afterward agrees to the disclaimer as a modification of the contract. [Citations.]
In support of their motion for summary judgment, Appellees offered six disclaimers, all of which were deposition exhibits. None of these six disclaimers is probative as to the issue of whether the disclaimer was communicated prior to the completion of the contract of sale. ***
Accordingly, the trial court's order granting summary judgment is reversed as to Appellants' claims for breach of warranty filed less than four years after the delivery of the truck upon which the claim is based, and is remanded to the trial court for further proceedings.
INTERPRETATION A disclaimer of warranties of merchantability and fitness for a particular purpose must be communicated clearly to the buyer.
ETHICAL QUESTION Did any of the parties act unethically? Explain.
CRITICAL THINKING QUESTION Do you agree with the court's decision? Explain.