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AMI 2529 Limitation or Modification of Remedies for Breach of Warranty

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2529
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 25. UCC Sales Contracts
AMI 2529 Limitation or Modification of Remedies for Breach of Warranty
(Seller) has raised the defense that the parties' contract provided an exclusive limited remedy for breach of warranty.
(Buyer) contends that the limited remedy provided by (seller) failed of its essential purpose and has the burden of proving [any one of] the following essential proposition[s]:
[That the (specify the goods in question) cannot be repaired or its part(s) replaced so that it is made free or defects;] [or]
[That the limitation of remedy available to (buyer) deprived [him][her][it] of the substantial value of [his][her][its] bargain;] [or]
[That (seller), when given the opportunity to do so, failed to correct the defect within a reasonable time.]
[If you so find, then the limited remedy is not enforceable by (seller) in this case and you may award such damages as you find from the evidence under the instructions given to you.
If you find that the limited remedy did not fail of its essential purpose, then (your verdict should be for )(you should award only those damages provided for by the limited remedy).]
NOTE ON USE
Use this instruction when the plaintiff contends that the limited remedy for breach of warranty failed of its essential purpose. Use the appropriate bracketed elements. If applicable law expresses another essential element which is appropriate to a particular case, the instruction should be modified to state the element.
Do not use the final bracketed paragraph when the case is submitted on interrogatories.
COMMENT
This instruction is based on Ark. Code Ann. § 4-2-719, which permits the limitation of remedies. Resort to a remedy provided is optional unless it is expressly agreed to be exclusive. Ark. Code Ann. § 4-2-719(1)(b). If an exclusive or limited remedy fails of its essential purpose, the jury may award any of the remedies otherwise provided under the UCC. Ark. Code Ann. § 4-2-719(2).
Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Ark. Code Ann. § 4-2-719(3). 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. Id.
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