The Guitar That Quit

Sherry buys a new guitar for $300. On the sales receipt is a clause that reads, “This writing is the “exclusive statement of the terms of agreement between the parties. Seller makes no warranties either express or implied with respect to this product.” The third time Sherry plays the guitar, one of the strings snaps. Can she return the guitar?

A disclaimer is an attempt to limit the seller’s responsibilities should anything go wrong with a product. The clause quoted in the Case of the Guitar That Quit is a disclaimer. It is an attempt by the

store to avoid responsibility for anything that goes wrong with the guitar. The quoted clause makes it clear that an express warranty is not being offered. But does the clause disclaim the implied warranty?

Sellers can usually disclaim the implied warranty of merchantability by using such expressions as “with all faults” or “as is” Unless these or other easily understood words are used, the seller must actually use the word merchantability in disclaiming the im­plied warranty of merchantability. In addition, to be effective, the disclaimer must be written so as to be easily seen by the consumer. Because the sales receipt for the guitar did not say “as is,” “with all faults,” or “merchantability,” it is probably not effective as a dis­claimer of the implied warranty of merchantability. Sherry should be protected if she returns the guitar.

Under the Magnuson–Moss Warranty Act, sellers offering a writ­ten warranty may not disclaim or modify any implied warranty dur­ing the effective period of the written warranty.

Sellers sometimes use disclaimers to limit the consumer’s remedy. For example, a contract may read, “It is expressly understood and agreed that the buyer’s only remedy shall be repair or replacement of defective parts. The seller is not liable in damages for injury to persons or property.” Suppose the warranty limits the remedy to “re­pair or replacement of defective parts” and this remedy does not work (that is, after repeated attempts at repair, the product still does not work). In such cases, the buyer can usually seek other remedies. But courts will require that the buyer give the seller a reasonable opportunity to repair the product.

Find the equivalents of the following words and expressions
in the text.

Отказ; ограничить ответственность продавца; неполадки с товаром; «как есть» (выражение, используемое в текстах официальных соглашений; означает, что покупаемый или поставляемый товар принимается приобретающей стороной ровно в том состоянии, в каком находится на момент покупки, со всеми ошибками, неполадками, недоделками или какими–либо другими дефектами); гарантийный период; ограничить возмещение убытка покупателю; быть ответственным; искать другие возможности возмещения ущерба.

Answer the questions:

1. What is a disclaimer?

2. How do sellers usually disclaim the implied warranty of merchantability?

3. Why must the disclaimer be written?

4. Can sellers disclaim or modify any implied warranty dur­ing the effective period of the written warranty?

5. How can sellers use disclaimers to limit the consumer’s remedy?

6. Where can the buyer seek other remedies?

7. Have you ever come across a disclaimer?

Problem–solving:

Mock Trial:

James Phillips v. The Radio Shop

FACTS

In this case, James Phillips purchased a radio/cassette player from The Radio Shop and later attempted to exchange it because it did not work. The date of the sale was November 14; the return was made 10 days later. The sales slip has the following language print­ed at the bottom: “This product is fully guaranteed for 5 days from the date of the purchase. If defective, return it in the original box for credit toward another purchase.”

The store refused to make the exchange, and James brought this action in small claims court.