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Re: Warranty disclaimers and yelling

On Tue, May 18, 2004 at 11:11:36PM -0400, Glenn Maynard wrote:
> > Note that Uniform Commercial Code ? 2-316 requires any disclaimer of the
> > implied warranty of merchantability to be conspicuous: 
> (I thought SCREAMING CAPS was a standard way of saying "this text isn't
> important; skip it, it's hard to read anyway".)
> Hmm.  I tend to skip warranty disclaimers when reading licenses--not a
> very good habit, but I'm probably not alone.  It makes me wonder if any
> licenses have snuck restrictions in by placing them in caps near the
> warranty disclaimer, so nobody would actually read it.

The problem is that the law evolved in a different context.  Unscrupulous
manufacturers would hide disclaimers in small print in inconspicuous
places on a package; as a response, courts (and ultimately the UCC and
state statutes) imposed this sort of requirement, which is generally
satisfied by putting the text in all caps in some reasonable size font
"up front"--for example, you'll see most product warranties start with
the disclaimer in all caps, followed by what actually is covered.

Whether this was really ever effective in non-electronic media is
probably debatable, but I think it persists in electronic form simply
because it was considered sufficiently "conspicuous" in other contexts.
Adam Kessel

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