Tennessee § 47-2-316 - Exclusion or modification of warranties.

§ 47-2-316. Exclusion or modification of warranties.

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; but subject to the provisions of this chapter on parol or extrinsic evidence (§ 47-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable. 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, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.” 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; and when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade. Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy (§§ 47-2-718 and 47-2-719 ). The implied warranties of merchantability and fitness shall not be applicable to a contract for the sale, procurement, processing, distribution or use of human tissues (such as corneas, bones, or organs), whole blood, plasma, blood products, or blood derivatives. Such human tissues, whole blood, plasma, blood products, or blood derivatives shall not be considered commodities subject to sale or barter, and the transplanting, injection, transfusion or other transfer of such substances into the human body shall be considered a medical service. Acts 1963, ch. 81, § 1 (2-316); 1967, ch. 206, § 1. Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Commercial Law, §§ 12, 13, 16, 37; 7 Tenn. Juris., Contracts, § 45; 14 Tenn. Juris., Hospitals, §§ 2, 5; 19 Tenn. Juris., Negligence, § 14. Law Reviews. Case Comment, Contracts — Morris v. Mack's Used Cars: Another Weapon for the Consumer Protection Arsenal, 23 Mem. St. U.L. Rev. 871 (1993). Tennessee's Theories of Misrepresentation (Joe E. Manuel and Stuart F. James), 22 Mem. St. U.L. Rev. 633 (1992). Cited: Country Clubs, Inc. v. Allis-Chalmers Mfg. Co., 430 F.2d 1394, 1970 U.S. App. LEXIS 7643 (6th Cir. Tenn. 1970); MBI Motor Co. v. Lotus/East, Inc., 506 F.2d 709, 1974 U.S. App. LEXIS 5713 (6th Cir. Tenn. 1974); Ford Motor Co. v. Moulton, 511 S.W.2d 690, 1974 Tenn. LEXIS 498 (Tenn. 1974); Affiliated Professional Services v. South Cent. Bell Tel. Co., 606 S.W.2d 671, 1980 Tenn. LEXIS 505 (Tenn. 1980); In re Ashley, 5 B.R. 262, 1980 Bankr. LEXIS 4801 (Bankr. E.D. Tenn. 1980); Fletcher v. Coffee County Farmers Cooperative, 618 S.W.2d 490, 1981 Tenn. App. LEXIS 502 (Tenn. Ct. App. 1981); McCullough v. General Motors Corp., 577 F. Supp. 41, 1982 U.S. Dist. LEXIS 17634 (W.D. Tenn. 1982); Perryman v. Peterbilt of Knoxville, Inc., 708 S.W.2d 403, 1985 Tenn. App. LEXIS 3273 (Tenn. Ct. App. 1985); Mitchell v. White Motor Credit Corp., 627 F. Supp. 1241, 1986 U.S. Dist. LEXIS 30042 (M.D. Tenn. 1986); Wright v. Dow Chem. U.S.A., 845 F. Supp. 503, 1993 U.S. Dist. LEXIS 19458 (M.D. Tenn. 1993); Spence v. Miles Lab., 37 F.3d 1185, 1994 FED App. 352P, 1994 U.S. App. LEXIS 29071 (6th Cir. 1994); Lee's Home Ctr., Inc. v. Morris, — S.W.3d —, 2006 Tenn. App. LEXIS 412 (Tenn. Ct. App. June 21, 2006); Invest v. Cone Solvents, — S.W.3d —, 2007 Tenn. App. LEXIS 480 (Tenn. Ct. App. July 26, 2007).