Ark. Code Ann. § 4-2-316

Research References

Ark. L. Notes.

Copeland, the Implied Warranty of Habitability and the Use of the Uniform Commercial Code by Analogy, 1983 Ark. L. Notes 5.

Looney, The Toothless Cow, the Little Bull That Couldn't, and Udder Matters: Livestock Warranties and the Uniform Commercial Code, 1990 Ark. L. Notes 75.

Ark. L. Rev.

Unconscionable Contracts and the Uniform Commercial Code, 20 Ark. L. Rev. 165.

Unconscionable Contracts: A New Approach for the Arkansas Lawyer, 21 Ark. L. Rev. 427.

Torts — Strict Liability in Products Cases, 22 Ark. L. Rev. 796.

Legislative Note — Act 111 of 1973: An Act to Impose Liability for Injury and Damages Done in Certain Circumstances by Defective Products, 27 Ark. L. Rev. 562.

For Whom the Bell Tolls — An Interpretation of the UCC's Exception as to Accrual of a Cause of Action for Future Performance Warranties, 28 Ark. L. Rev. 312.

The Personal Injury Action in Warranty — Has the Arkansas Strict Liability Statute Rendered It Obsolete? 28 Ark. L. Rev. 335.

Voucher to Products Liability: The Mechanics of U.C.C. § 2-607(5)(a), 29 Ark. L. Rev. 486.

Magnuson-Moss vs. State Protective Consumer Legislation: The Validity of a Stricter State Standard of Warranty Protection, 30 Ark. L. Rev. 21.

Case Notes

Applicability.

Where plaintiff brought tort and contract claims against defendant for dissatisfaction with a horse, remedies prescribed in this chapter for a buyer against a seller of goods were inapplicable since the positions of plaintiff and defendant were not those of buyer and seller, and since the agreement was for personal services and not for a sale. Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728 (1996).

“As Is” Transactions.

Only implied, not express, warranties are excluded in “as is” transactions. Tenwick v. Byrd, 9 Ark. App. 340, 659 S.W.2d 950 (1983).

Summary judgment was properly granted to the sellers on the breach of warranty claims where the bill of sale indicated that the vehicle was sold “as is,” thereby disclaiming all implied warranties. Madden v. Mercedes-Benz USA, Inc., 2016 Ark. App. 45, 481 S.W.3d 455 (2016).

Consistency of Construction.

Where there was an express warranty on the sale of cotton seed required by law, an attempt to modify such warranty by a statement of “non-warranty” on the invoice was inconsistent with the express warranty and to that extent unreasonable. Walcott & Steele, Inc. v. Carpenter, 246 Ark. 95, 436 S.W.2d 820 (1969).

Conspicuous.

Exclusions or modifications of the implied warranty of fitness are not effective unless they are conspicuous. Mack Trucks of Ark., Inc. v. Jet Asphalt & Rock Co., 246 Ark. 101, 437 S.W.2d 459 (1969), overruled in part on other grounds, Cavette v. Ford Motor Credit Co., 260 Ark. 874, 545 S.W.2d 612 (1977).

The requirement that an exclusion or modification of implied warranties be conspicuous is to insure that attention of the buyer can reasonably be expected to be brought to it. Mack Trucks of Ark., Inc. v. Jet Asphalt & Rock Co., 246 Ark. 101, 437 S.W.2d 459 (1969), overruled in part on other grounds, Cavette v. Ford Motor Credit Co., 260 Ark. 874, 545 S.W.2d 612 (1977).

Disclaimer held to be insufficiently conspicuous. Mack Trucks of Ark., Inc. v. Jet Asphalt & Rock Co., 246 Ark. 101, 437 S.W.2d 459 (1969), overruled in part on other grounds, Cavette v. Ford Motor Credit Co., 260 Ark. 874, 545 S.W.2d 612 (1977); Dessert Seed Co. v. Drew Farmers Supply, Inc., 248 Ark. 858, 454 S.W.2d 307 (1970); DeLemar Motor Co. v. White, 249 Ark. 708, 460 S.W.2d 802 (1970); Ford Motor Credit Co. v. Harper, 671 F.2d 1117 (8th Cir. 1982).

Where documents involved were before Supreme Court on appeal, Supreme Court was in a position to determine whether express warranty which purported to be in lieu of all others was conspicuous. Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S.W.2d 784 (1969).

Where the manufacturer's disclaimer appeared on the back of the dealer's purchase order, but in print larger than the surrounding writing, and writing in large print on the front of the form, directly above the line for the buyer's signature, directed the buyer to the controlling terms on the back, the writing was such that should have attracted the attention of a reasonable buyer and, therefore, satisfied the standard for conspicuousness. Hunter v. Texas Instruments, Inc., 798 F.2d 299 (8th Cir. 1986).

Language contained on defendant's standard invoices, stating that all claims for losses had to be submitted in writing within 30 days of delivery, was insufficient to exclude or modify the implied warranty of merchantability. Jackson v. Swift-Eckrich, 830 F. Supp. 486 (W.D. Ark. 1993).

Course of Dealing.

The relatively few sales of stress testing machines and patient carts accompanied by a standard warranty did not establish a course of dealing that would extend the disclaimer provisions to an agreement to purchase a computer-assisted electrocardiographic system, inasmuch as the different nature and magnitude of the complex system made any course of dealing which might have existed as to the sales of carts and stress testing machines inapplicable. Wilson v. Marquette Elecs., Inc., 630 F.2d 575 (8th Cir. 1980).

Effect of Disclaimer.

A disclaimer of warranties under this section limits the seller's liability by reducing the number of circumstances in which the seller will be in breach of the contract; it precludes the existence of a cause of action. Caterpillar Tractor Co. v. Waterson, 13 Ark. App. 77, 679 S.W.2d 814 (1984).

A clear manufacturer's disclaimer or limitation of remedy made in a dealer's contract may become part of the basis of the bargain and is not ineffective solely because the manufacturer is not a party to the contract. Hunter v. Texas Instruments, Inc., 798 F.2d 299 (8th Cir. 1986).

Where the disclaimer was in bold type on page five of the label and clearly mentioned merchantability, the label could have been effective to disclaim all implied warranties under subsection (2). Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992).

Exclusions.

A fine print clause excluding express warranties did not comply with subsection (2) of this section. Sawyer v. Pioneer Leasing Corp., 244 Ark. 943, 428 S.W.2d 46 (1968).

Express warranty which was actually in the nature of a disclaimer of all other warranties was invalid as not mentioning merchantability and as not being conspicuous. Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S.W.2d 784 (1969).

Implied warranties may be excluded by language or expressions which in common understanding call the buyer's attention to the exclusion of warranties and make plain that there is no implied warranty by course of dealings or course of performance or usage of trade. Bailey v. Ford Motor Co., 246 Ark. 950, 440 S.W.2d 238 (1969).

An express warranty may exclude an implied warranty of merchantability if the exclusion mentions the word “merchantability” and, if written, is conspicuous. Walker Ford Sales v. Gaither, 265 Ark. 275, 578 S.W.2d 23 (1979).

A manufacturer may disclaim implied warranties and limit the remedy for breach of warranty in a dealer's form contract to which it is not a party. Hunter v. Texas Instruments, Inc., 798 F.2d 299 (8th Cir. 1986).

In an action by the buyer of a used Hydro-Ax machine against the seller and two manufacturers, the trial court did not err in granting summary judgment against buyer on his claim of breach of implied warranties; the fact that there was no written exclusion of the implied warranty of fitness did not provide the buyer with relief because subdivision (3) of this section negated the necessity of a writing in an “as is” sale and any implied warranties were excluded because, prior to the sale, buyer was allowed to inspect and use the machine for two days. Pilcher v. Suttle Equip. Co., 365 Ark. 1, 223 S.W.3d 789 (2006).

Leases.

Subsection (2) of this section is applicable to leases that are analogous to sales. Sawyer v. Pioneer Leasing Corp., 244 Ark. 943, 428 S.W.2d 46 (1968).

Limitation of Remedies.

Subsection (4) of this section must be applied in accordance with the provisions of §§ 4-2-718 and 4-2-719. Dessert Seed Co. v. Drew Farmers Supply, Inc., 248 Ark. 858, 454 S.W.2d 307 (1970).

Where manufacturer intended the repair remedy to be exclusive, but did not state that intention in express language in the “general warranty provisions” which went to “obligations” and “warranties,” and not to remedies, instructions given to jury to find for the plaintiff the amount of damages if the warranty was breached and the breach resulted in damages to plaintiff, was correct. Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.W.2d 80 (1971).

Where the buyer of the computer was college-educated with some background in commercial law who shopped extensively for computer equipment to suit his needs, the limited remedy clause, which committed the manufacturer to correcting defects in workmanship and equipment to ensure that the equipment conformed to the contract, was not unconscionably one-sided. Hunter v. Texas Instruments, Inc., 798 F.2d 299 (8th Cir. 1986).

Modifications.

An attempted limitation or modification of an implied warranty long after the contract of purchase was signed was ineffective as amounting to a unilateral attempt of one party to limit its obligations. Mack Trucks of Ark., Inc. v. Jet Asphalt & Rock Co., 246 Ark. 101, 437 S.W.2d 459 (1969), overruled in part on other grounds, Cavette v. Ford Motor Credit Co., 260 Ark. 874, 545 S.W.2d 612 (1977).

Trade Usage.

Where the evidence did not indicate buyer was the type of party who was or should be aware of the industry's trade customs, since buyer was entering a market in which it was relying on seller's expertise, the district court was not clearly erroneous in finding seller's implied warranties were not effectively disclaimed. Wilson v. Marquette Elecs., Inc., 630 F.2d 575 (8th Cir. 1980).

Cited: Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W.2d 836 (1968); Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); Ark. Power & Light Co. v. Home Ins. Co., 602 F. Supp. 740 (E.D. Ark. 1985); Kirkendall v. Harbor Ins. Co., 698 F. Supp. 768 (W.D. Ark. 1988); Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988); Kirkendall v. Harbor Ins. Co., 887 F.2d 857 (8th Cir. 1989); Shaver v. Spann, 35 Ark. App. 118, 813 S.W.2d 280 (1991); O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997); Lee County v. Volvo Constr. Equip. N. Am., Inc., No. 2:07-CV-00082 BSM, 2008 U.S. Dist. LEXIS 95745 (E.D. Ark. Nov. 20, 2008).