CACI 3221 Affirmative Defense—Disclaimer of Implied Warranties

California Civil Jury Instructions CACI

3221 Affirmative Defense—Disclaimer of Implied Warranties

[Name of defendant] claims that it did not breach any implied warranties because the [consumer good] was sold on an “as is” or “with all faults” basis. To succeed, [name of defendant] must prove both of the following:

1.That at the time of sale a clearly visible written notice was attached to the [consumer good]; and

2.That the written notice, in clear and simple language, told the buyer each of the following:

a.That the [consumer good] was being sold on an “as is” or “with all faults” basis;

b.That the buyer accepted the entire risk of the quality and performance of the [consumer good]; and

c.That if the [consumer good] were defective, the buyer would be responsible for the cost of all necessary servicing or repair.

Directions for Use

If the consumer goods in question were sold by means of a mail-order catalog, the instruction must be modified in accordance with Civil Code section 1792.4(b).

In addition to sales of consumer goods, the Consumer Warranty Act applies to leases—see Civil Code sections 1791(g)–(i) and 1795.4. This instruction may be modified for use in cases involving leases of consumer goods.

If at the time of sale, or within 90 days thereafter, the defendant sold the plaintiff a service contract that applied to the product, the federal Magnuson-Moss Warranty—Federal Trade Commission Improvement Act preempts use of this defense. (See 15 U.S.C. § 2308.)

Sources and Authority

Waiver of Implied Warranties. Civil Code section 1792.3.

“As Is” Sale. Civil Code section 1791.3.

Conspicuous Writing Required. Civil Code section 1792.4.

Express Warranty Does Not Preempt Implied Warranty. Civil Code section 1793.

When Waiver of Implied Warranties Allowed. Civil Code section 1792.5.

Lessor’s Disclaimer of Warranties on Re-lease. Civil Code section 1795.4(e).

“Unless specific disclaimer methods are followed, an implied warranty of merchantability accompanies every retail sale of consumer goods in the state.” (Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 619 [39 Cal.Rptr.2d 159].)

Secondary Sources

4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 91
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, §§ 3.53–3.61
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.34[3], Ch. 8, Defenses, § 8.07[5][c] (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.72 et seq. (Matthew Bender)
California Civil Practice: Business Litigation §§ 53:8–53:9, 53:58 (Thomson Reuters)