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1. The circumstances under which implied warranties of "merchantability" and "fitness" arise are dealt with in §§2-314 and 2-315. These sections make no great change from prior law.3
2. What seems to be the relationship between §2-316 and §2-719?4
3. Reread Code §2-302 (Unconscionable Contract or Clause), reprinted supra p. 561. As a matter of decent statutory construction, do you think that a clause which disclaimed a warranty under §2-316 or effectively limited the remedy under §2-719 could nevertheless be stricken for unconscionability under §2-302? The Comment to §2-302 cites eleven cases, nine of which involved attempted disclaimers of warranty that, on one theory or another, were held ineffective.5
4. With respect to §2-719(3), Comment 3 observes:6
Subsection (3) recognizes the validity of clauses limiting or excluding consequential damages but makes it dear that they may not operate in an unconscionable manner. Actually such terms are merely an allocation of unknown or undeterminable risk. The seller in all cases is free to disclaim warranties in the manner provided in Section 2-316.
5. New Jersey adopted the Code in 1963. After the enactment of the Code, do you think that the Henningsen case was still good law in New Jersey? Specifically, would the substance of the Chrysler Corporation's warranty, appropriately redrafted to fit Code requirements, be void as against public policy?
June 02, 2014
10.4.10.2 Notes - Uniform Commercial Code §2-316
Kessler, Gilmore & Kronman
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