AMI 2514 Defense—Exclusion or Modification of Implied Warranties

Use this instruction when the defendant asserts the exclusion or modification of an implied warranty due to the buyer's opportunity to examine the goods or a sample or model, or due to course of dealing, course of performance or usage of trade. Use the appropriate bracketed phrases as warranted by the evidence. In the event a particular case presents other issues related to the defense of exclusion or modification of implied warranties (e.g., the timing of a disclaimer), this instruction should be modified.

This instruction is based on Ark. Code Ann. § 4-2-316(3)(b), (c).

Whether a disclaimer is conspicuous as required by Ark. Code Ann. § 4-2-316(2) is to be determined by the court. Ark. Code Ann. § 4-1-201(10). It is anticipated that the other provisions of § 4-2-316 will not present issues for the jury in most cases. For example, § 4-2-316(2) provides that “language to exclude all implied warranties of fitness is sufficient if it states … that ‘There are no warranties which extend beyond the description on the face hereof.’” Likewise, § 4-2-316(3) states “[u]nless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty.”

For a discussion of the distinction between the exclusion or modification of warranties and the limitation of remedies, see Jackson v. Swift–Eckrich, 830 F. Supp. 486, 493–494 (W.D. Ark. 1993) and Caterpillar Tractor Co. v. Waterson, 13 Ark. App. 77, 679 S.W.2d 814 (1984).

If an alleged express warranty is inconsistent with an attempted exclusion of a warranty, a jury may conclude that the exclusion is ineffective. Ark. Code Ann. § 4-2-316(1); Ciba–Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992). If that situation is presented by the facts in the case, a separate instruction may be required.