Fairchild Industries v. Maritime Air Service, Ltd.

333 A.2d 313 (1975)

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Nature of the Case

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Facts

P and D entered into a lease agreement in which D leased a helicopter to P for an initial term of one year, with options to extend the lease for an additional two years, subject to an option to purchase the aircraft during the term of the lease. P exercised the option to purchase and the parties entered into a purchase agreement which consisted of a printed form, furnished by D, on which relevant provisions were inserted by typewriter. Among those typewritten provisions was the following: 'It is specifically understood and agreed by the parties that the Aircraft is sold in an 'As is' condition. Seller makes no representation or warranties express or implied whatsoever except Warranty of Title. Buyer acknowledges that before entering into this Agreement he has examined the Aircraft as fully as he desires.' P sued D and D pled the disclaimer as a defense to P’s lawsuit. The certification of these questions ensued: (1). Does the requirement found in UCC 2-316 (2) . . . that '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' apply to the provisions for exclusion of warranties set forth in UCC 2-316 (3) (a) . . .? (2). In the event that the requirement of conspicuousness found in UCC 2-316 (2) . . . may, but need not always, apply to provisions for exclusion of warranties set forth in UCC 2-316 (3) (a), are any of the following circumstances relevant in determining the necessity for such conspicuousness? (1) The course of business dealings between the buyer and seller. (2) The circumstances surrounding the transaction. (3) Whether or not the buyer has examined or used the goods prior to the sale. (4) The relative commercial skills of the buyer and seller.'