41-02-33. (2-316) Exclusion or modification of warranties.
426 words·~2 min read·
/nd/title-41/chapter-41-02-sales/41-02-33·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
1. Words or conduct relevant to the creation of an express warranty and words or
conduct tending to negate or limit warranty shall be construed whenever reasonable
as consistent with each other; but subject to the provisions of this chapter on parol or
extrinsic evidence (section 41-02-09), negation or limitation is inoperative to the extent
that such construction is unreasonable.
2. 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".
3. Notwithstanding subsection 2:
a. 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.
b. When the buyer before entering into the contract has examined the goods or the
sample or model as fully as the buyer 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 the buyer.
c. An implied warranty can also be excluded or modified by course of dealing or
course of performance or usage of trade.
d. The implied warranties of merchantability and fitness shall not be applicable to a
contract for the sale of human blood, blood plasma, or other human tissue or
organs from a blood bank or reservoir of such other tissues or organs. Such
blood, blood plasma, or tissue or organs shall not for the purposes of this chapter
be considered commodities subject to sale or barter, but shall be considered as
medical services.
e. With respect to the sale of cattle, hogs, sheep, and horses, there shall be no
implied warranty that cattle, hogs, sheep, and horses are free from sickness or
disease at the time the sale is consummated, conditioned upon reasonable
showing by the seller that all state and federal regulations pertaining to animal
health were complied with.
4. 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 (sections 41-02-97 and 41-02-98).