Can a seller disclaim the implied warranty of merchantability?

What the Law Says

New York law permits sellers to disclaim the implied warranty of merchantability under the Uniform Commercial Code (UCC), but imposes strict requirements to ensure fairness and notice to buyers.

Under New York’s adoption of the UCC, the implied warranty of merchantability arises automatically when a seller is a merchant with respect to goods of that kind. However, this warranty may be excluded or modified — but only if done properly.

To disclaim merchantability, the language must be conspicuous — meaning it must be so written that a reasonable person ought to have noticed it (e.g., boldface, larger type, or contrasting color). The disclaimer must also mention the word 'merchantability' explicitly.

A disclaimer may appear in a writing associated with the sale — such as a contract, invoice, or label — but oral disclaimers are ineffective. General phrases like 'as is' or 'with all faults' are insufficient unless accompanied by a conspicuous written disclaimer referencing merchantability.

Statutory Text

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous.

— N.Y. U.C.C. Law § 2-316(2) — Exclusion or modification of warranties

Statutory Text

Notwithstanding subsection (2), unless 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.

— N.Y. U.C.C. Law § 2-316(3)(a) — Exclusion by expression

What to Do

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