Consumer Warranties And The Consumer Fraud Act

"AS IS" CLAUSE AND WHETHER IT IS ENFORCEABLE

The New Jersey equivalent of the Uniform Commercial Code does permit disclaimers or limitation of warranties; however, it is to be strictly construed against the seller per the New Jersey Supreme Court.

“As to disclaimers or limitations of the obligations that normally attend a sale, it seems sufficient . . . that they are strictly construed against the seller.” Henningsen v. Bloomfield Motors Inc., 32 N.J. 358, 373 (1960).

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other, and the negation or limitation is inoperative to the extent that such construction is unreasonable. N.J.S.A. 12A:2-316 (exclusion or modification of warranties). Warranties, whether express or implied, shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant, and express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. N.J.S.A. 12A:2-317.

The seller of goods cannot provide express warranties and then have them waived. Under New Jersey law, disclaimer of express warranty, satisfying statutory requirements, would nonetheless not be enforced to negate express warranty that the current version of marine gel had greater flexibility than the prior version; disclaimer was unreasonably inconsistent with warranty. Viking Yacht Co. v. Composites One LLC, D.N.J.2007, 496 F.Supp.2d 462, on reconsideration in part 2007 WL 2746713. When warranty once becomes binding, the disclaimer cannot be operative, unless along with disclaimer, the warranty has been rescinded. Diepeveen v. Larry Vogt, Inc., 27 N.J.Super. 254, 99 A.2d 329 (A.D.1953).

The Magnusson Act does not even permit the waiver of warranties when there has been the sale of a service contract. 15 USC 2308

a) Restrictions on disclaimers or modifications
No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if
(1) such supplier makes any written warranty to the consumer with respect to such consumer Product, or
(2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product.
(b) Limitation on duration
For purposes of this chapter (other than section 2304 (a)(2) of this title), implied warranties may be limited in duration to the duration of a written warranty of reasonable duration, if such limitation is conscionable and is set forth in clear and unmistakable language and prominently displayed on the face of the warranty.
(c) Effectiveness of disclaimers, modifications, or limitations. A disclaimer, modification, or limitation made in violation of this section shall be ineffective for purposes of this chapter and State law.

An exclusion or limitation engrafted upon express warranties is inoperative to extent its terms are unreasonably inconsistent with express warranties that are given. Gladden v. Cadillac Motor Car Division, General Motors Corp., 83 N.J. 320, 416 A.2d 394 (1980). Under certain circumstances, a restriction upon damages interwoven in an express warranty guaranteeing performance could be “unreasonably inconsistent” with terms of express warranty and, therefore, inoperative. Gladden v. Cadillac Motor Car Division, General Motors Corp., 83 N.J. 320, 416 A.2d 394 (1980).