(October 13, 2016) The implied warranty of merchantability requires that goods reasonably conform to an ordinary buyer’s expectations.  However, many contracts disclaim implied warranties in the terms and conditions section. The Kent County Specialized Business Docket (“Business Court”) recently addressed the issue of disclaiming implied warranties in Noble Polymers LLC v Hanover Specialties Inc.

In the case, Defendant Hanover Specialties Inc. (“Hanover”) built playgrounds using cushioned rubber outdoor flooring supplied by Plaintiff Noble Polymers LLC (“Noble”). After installation, the playground surfaces began buckling to the point of being unstable, and Hanover refused to make final payment. Noble filed suit for the unpaid balance of the contract, and Hanover filed multiple counter-claims for, among other things, a breach of implied warranties.

Noble then claimed that all implied warranties were waived in the terms and conditions of the contract, which were emailed to Hanover prior to the sale. Hanover claimed it never received the terms and conditions, and the document was thus never part of the final contract.

The Business Court held that because the terms and conditions were emailed to Hanover during negotiations, it became part of the contract and barred any counterclaim for breach of implied warranties.

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