Text and Circumstance: Warranty Disclaimers in a World of Rolling Contracts

This Article provides a flexible test based on language in Article 2 of the Uniform Commercial Code that validates certain disclaimers “unless the circumstances indicate otherwise.” The test would enable a trier of fact to find a disclaimer ineffective if the nature of the transaction is such that it puts the buyer off guard as to the existence or effect of a disclaimer. To illustrate the value of this test, the Article applies the test to the critical issue of disclaimers in rolling contracts involving consumer purchases. The Article concludes that although it may be appropriate to provide some terms only after purchase or order, a warranty disclaimer in a consumer purchase is not such a term.