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Re: Warranty disclaimers and yelling

On Tue, May 18, 2004 at 06:52:10PM -0500, Joe Wreschnig wrote:
> Is there any reason that warranty disclaimers ALWAYS LOOK LIKE THIS in
> copyright licenses? I can't find any legal precedent for requiring them
> to be like this, but the only one I remember seeing in a proper case is
> Peter Norvig's license[0] where clauses 1 and 2 take the place of the
> boilerplate disclaimer.

My understanding is that this just provides you with evidentiary support
that the warranty disclaimer is unequivocal.  As a counterexample,
imagine a product with the warranty disclaimer in 4 point font on the
inside of the packaging -- a court would likely find the disclaimer
ineffective and impose an implied warranty of merchantability.  If you
want to disclaim this warranty, it's in your interest to set it up to
make it harder for a consumer to argue that she wasn't aware of the

I'm not aware of any particular case that hinged on mixed case versus
all caps, but it does seem to be the standard way to make the

Note that Uniform Commercial Code  2-316 requires any disclaimer of the
implied warranty of merchantability to be conspicuous: 

    Subject to subsection (3), to exclude or modify the implied warranty
    of merchantability or any part of it the language must mention
    merchantability and in case of a writing must be conspicuous, and to
    exclude or modify any implied warranty of fitness the exclusion must
    be by a writing and conspicuous. Language to exclude all implied
    warranties of fitness is sufficient if it states, for example, that
    There are no warranties which extend beyond the description on the
    fact hereof.  


> (Alternately, are warranty disclaimers even necessary? I'm under the
> impression they are at least in the US, because of the implied
> warranties that are disclaimed by most licenses.)

Yes. See UCC  2-314:

 2-314. Implied Warranty: Merchantability; Usage of Trade.

  (1) Unless excluded or modified (Section 2-316), a warranty that the
  goods shall be merchantable is implied in a contract for their sale if
  the seller is a merchant with respect to goods of that kind. Under this
  section the serving for value of food or drink to be consumed either on
  the premises or elsewhere is a sale.  

  (2) Goods to be merchantable must be at least such as

    (a) pass without objection in the trade under the contract
    description; and
    (b) in the case of fungible goods, are of fair average quality
    within the description; and
    (c) are fit for the ordinary purposes for which such goods are
    used; and
    (d) run, within the variations permitted by the agreement, of even
    kind, quality and quantity within each unit and among all units
    involved; and
    (e) are adequately contained, packaged, and labeled as the
    agreement may require; and
    (f) conform to the promise or affirmations of fact made on the
    container or label if any.

  (3) Unless excluded or modified (Section 2-316) other implied
  warranties may arise from course of dealing or usage of trade.  

Adam Kessel

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