O.C.G.A. § 11-2-719 (2019)
Contractual modification or limitation of remedy
(1) Subject to the provisions of subsections (2) and (3) of this Code section and of Code Section 11-2-718 on liquidation and limitation of damages: (a) The agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima
facie unconscionable but limitation of damages where the loss is commercial is not.
History
Code 1933, § 109A-2-719, enacted by Ga. L. 1962, p. 156, § 1.
Annotations
Law reviews. For comment on Felder v. Neeves, 36 Ga. App. 41, 135 S.E. 219 (1926) , see Ga. L. Rev. No. 1 P. 51 (1927). For article, “Consumer Protection Against Sellers Misrepresentations,” see 20 Mercer L. Rev. 414 (1969). For note, “Buyer’s Right to Revoke Acceptance Against the Automobile Manufacturer for Breach of its Continuing Warranty of Repair or Replacement,” see 7 Ga. L. Rev. 711 (1973). For article comparing consumer remedies under the Magnuson-Moss Act (15 U.S.C. §§ 2301-2312) and the U.C.C., see 27 Mercer L. Rev. 1111 (1976). For article discussing the applicability
of warranty provisions under the Uniform Commercial Code to domestic solar energy devices, see 30 Mercer L. Rev. 547 (1979). For comment, “Damage Awards and Computer Systems - Trends,” see 35 Emory L.J. 255 (1986). For note, “Enforcing Manufacturers’ Warranty Exclusions Against Non-Privity Commercial Purchasers: The Need for Uniform Guidelines,” see 20 Ga. L. Rev. 461 (1986). For article, “Impracticability As Risk Allocation: The Effect of Changed Circumstances upon Contract Obligations for the Sale of Goods,” see 22 Ga. L. Rev. 503 (1988). For article, “Contractual Limitations of Remedy and the Failure of Essential Purpose Doctrine,” see 26 Ga. St. B.J. 113 (1990).
JUDICIAL DECISIONS Contracts against liability for negligence are not favored by the law, and will be strictly construed, with every doubt resolved against party seeking their protection. Cash v. Armco Steel Corp., 462 F. Supp. 272, 1978 U.S. Dist. LEXIS 13893 (N.D. Ga. 1978). Parties cannot bar all remedies, avoid all damages. - O.C.G.A. § 11-2719 allows the parties to provide substitute remedies and limit damages but not to bar all remedies and avoid all damages. Freeman v. Hubco Leasing, Inc., 253 Ga. 698, 324 S.E.2d 462, 1985 Ga. LEXIS 554 (1985); Esquire Mobile Homes, Inc. v. Arrendale, 182 Ga. App. 528, 356 S.E.2d 250, 1987 Ga. App. LEXIS 1714 (1987). Exclusion of consequential damages in a vehicle’s warranty was not invalid under O.C.G.A. § 11-2-719(2), as the car manufacturer did not attempt to exclude all express or implied warranties; rather, the implied warranties, although limited in duration, were not excluded, and accordingly, the limitation did not “fail of its essential purpose” within the meaning of § 11-2-719(2). Lee v. Mercedes-Benz USA, LLC, 276 Ga. App. 28, 622 S.E.2d 361, 2005 Ga. App. LEXIS 1022 (2005).
O.C.G.A. § 11-2-719 does not require that a limitation of remedy be conspicuous, and in determining the validity of a limitation under that section conspicuousness is irrelevant. Apex Supply Co. v. Benbow Indus., Inc., 189 Ga. App. 598, 376 S.E.2d 694, 1988 Ga. App. LEXIS 1472 (1988). O.C.G.A. § 11-2-719, which explicitly permits the exclusion of consequential damages, does not impose any requirement of a conspicuous writing analogous to that of O.C.G.A. § 11-2-316(2). Webster v. Sensormatic Elec. Corp., 193 Ga. App. 654, 389 S.E.2d 15, 1989 Ga. App. LEXIS 1604 (1989); McCrimmon v. Tandy Corp., 202 Ga. App. 233, 414 S.E.2d 15, 1991 Ga. App. LEXIS 1752 (1991), cert. denied, No. S92C0415, 1992 Ga. LEXIS 88 (Ga. Feb. 4, 1992). Modification need not be in writing. - Modification or restitution of the remedy available for breach of warranty need not be in writing. Parole evidence to show the usage of the trade to explain or supplement the available remedies for breach of warranty was improperly excluded. Topeka Mach. Exch., Inc. v. Stoler Indus.,
Inc., 220 Ga. App. 799, 470 S.E.2d 250, 1996 Ga. App. LEXIS 233 (1996). Contract remedies not exclusive. - Award of lost profits damages to a supplier on the supplier’s breach of contract counterclaim against a purchaser was not precluded by O.C.G.A. § 11-2-719(1) as the contract did not clearly express that remedies listed therein were exclusive. Advanced BodyCare Solutions, LLC v. Thione Int’l, Inc., 615 F.3d 1352, 2010 U.S. App. LEXIS 17742 (11th Cir. 2010). Defects in machinery. - Where contract for machinery stated that the seller would repair or replace defective parts only and explicitly disallowed all other warranties, the buyer was bound by the contract and could not maintain an action for lost revenues resulting from defects in the machinery. Frick Forest Prods., Inc. v. International Hardwoods, Inc., 161 Ga. App. 359, 288 S.E.2d 625, 1982 Ga. App. LEXIS 1878 (1982). Consequential damages excluded by warranty limited to repair or replacement of defective goods. - Seller was not liable for consequential damages resulting from alleged breach of warranty arising from defects in its goods where seller’s written warranty specifically limited any liability to repairing or replacing any defective goods and where buyer had notice of the existence of the written war-
ranty but never requested or saw a copy of the written warranty. A-Larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382, 300 S.E.2d 311, 1983 Ga. App. LEXIS 1879 (1983). Warranty excluding consequential damages not unconscionable. - A warranty on a television set which excluded all incidental and consequential damages was not unconscionable under both a procedural and substantive analysis. NEC Technologies, Inc. v. Nelson, 267 Ga. 390, 478 S.E.2d 769, 1996 Ga. LEXIS 935 (1996). Warranty damage limitation unconscionable. - Contractual provision regarding the sale of a particular medical device that attempted to limit damages for breach of the manufacturer’s express warranty regarding replacement of the product was prima facie unconscionable. Horn v. Boston Sci. Neuromodulation Corp., No. CV409-074, 2011 U.S. Dist. LEXIS 102164 (S.D. Ga. Aug. 26, 2011). Repurchase offer agreed to as part of agreement. - Where it was determined that parties had agreed upon repurchase offer of seller in event of enforceable agreement, enforcement of such offer was reasonable measure of recovery under O.C.G.A. § 11-2-719(1). All-Co Drainage & Bldg. Prods., Inc. v. Umstead Enters., Inc., 123 Ga. App. 244, 180 S.E.2d 250, 1971 Ga. App. LEXIS 1179 (1971).
RESEARCH REFERENCES Am. Jur. 2d. 63 Am. Jur. 2d, Products Liability, §§ 217 et seq., 659 et seq. 67A Am. Jur. 2d, Sales, §§ 908-927. Am. Jur. Pleading and Practice Forms. 6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:797. C.J.S. 77A C.J.S., Sales, §§ 68, 73, 261, 262. U.L.A. Uniform Commercial Code (U.L.A.) § 2719. ALR. Necessity of buyer’s actual knowledge of
disclaimer of warranty of personal property, 160 A.L.R. 357. Validity of disclaimer of warranty clauses in sale of new automobile, 54 A.L.R.3d 1217. Construction and effect of UCC § 2316(2) providing that implied warranty disclaimer must be “conspicuous,” 73 A.L.R.3d 248. Products liability insurance coverage as extending only to product-caused injury to person or other property, as distinguished from mere product failure, 91 A.L.R.3d 921.