Do “As Is” Clauses in Sales Contracts Prevent All Lawsuits? by Julie Fershtman
Do “As Is” Clauses in Sales Contracts Prevent All Lawsuits?
Equine sales agreements sometimes include the words “as is” and “with all faults.” Sellers use these phrases with the hope of preventing buyers from bringing claims and lawsuits in an effort to reverse the sale. Do these words stop all sales-related lawsuits?
“As Is” Clauses
An “as is” clause in an equine sale contract is generally designed to exclude or limit a buyer’s claims against sellers for a breach of warranty relating to the horse’s fitness for a particular purpose or condition at the time of sale. One example of an “as-is” clause is:
SELLER MAKES NO WARRANTIES WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE PURCHASE OF THIS HORSE IS SUBJECT TO THE TERMS AND CONDITIONS OF AN “AS IS” SALE.
Limits on How “As-Is” Clauses Are Enforced
“As-is” clauses do not prevent all possible equine sales disputes. When a contract with an “as-is” clause becomes the subject of a dispute, courts have considered these factors:
• Courts in some states have held that “as-is” clauses do not bar claims of sales fraud, fraudulent misrepresentation, or fraud in the inducement (i.e., fraud from the seller that led the buyer to enter into the contract and make the purchase).
• Some courts have held that these clauses will bar a buyer’s breach of warranty claims against horse sellers under Uniform Commercial Codes, as long as the seller qualifies as a “merchant” as the law defines.
• According to some courts, an “as-is” clause in a sales contract will not bar claims against sellers based on consumer protection statutes (or state deceptive trade practice statutes).
“As is” clauses are sometimes subject to interpretation. In a Vermont case involving the sale of an Arabian stallion, for example, the Court held that the sales contract’s “as is” clause did not stop the buyer from suing the seller because the stallion was not breeding sound. In that case, the court ruled that the “as is” clause only applied to the stallion’s general physical health.
Sellers who want to maximize the effectiveness of an “as is” clause can check their state’s law to determine whether their state’s Uniform Commercial Code provides language for use in sales documents, such as disclaimers of warranty. Since these laws often provide that disclaimers should be “conspicuous” to be enforceable, sellers might want to set these clauses apart from the rest of the contracts and make them noticeable with bold-type font, contrasting color, or larger type size.
Buyers and sellers in equine sale transactions should consult with their own counsel to draft or review sales documents. Because state laws can differ, and because buyers and sellers typically have different interests in the transaction, parties to equine sales contracts should be especially cautious before using “one-size-fits-all” forms.
This article does not constitute legal advice. When questions arise based on specific situations, direct them to a knowledgeable attorney.
Julie Fershtman is considered to be one of the nation’s leading attorneys in the field of equine law. A frequent author and speaker on legal issues, she has written over 200 published articles, three books, and has lectured at seminars, conventions, and conferences in 28 states on issues involving law, liability, risk management, and insurance. For more information, please also visit www.fershtmanlaw.com and www.equinelaw.net, and www.equinelaw.info. December 19, 2013
This article was printed in Performance Horse Digest, Volume 9, Issue 10