[WSBARP] "As-is" disclaimers

[Carmen Rowe]

Following up on earlier postings (see below - separating this out as I'm on
digest), I have a bit of a caveat to this.

Paul & Steve, your comments seem to suggest that there has to be a specific
liability named in the waiver, but I don't think it's quite as strict/harsh
as that comment (or the case holdings) might be interpreted.

I personally do have a "laundry list" (listing specific broad categories of
potential issues) "as-is" disclaimer for warranties "express or implied",
and a lot of language about how it was specifically bargained for.

But the cases I've found in general that ditch the "as-is" for being too
broad of a brush are over boilerplate language that is quite often in very
small print. One case had an issue, too, where the problem was septic but
the discussions during sale negotiations on disclaimer were regarding the
barn - apparently coupled with the "as-is" language being literally in the
smallest print on the whole form.

So I think it really comes down to ensuring that a buyer knowingly enter
into this kind of restriction; and once that happens, it reverts to a true
"buyer beware/caveat emptor" and that is perfectly ok. Even if waiver is in
more general language than the "specifically identified" criteria might
imply.

There is also a rather educational case for drafters, where there was a
general "as-is", but did not expressly negate *express* warranties, so
court found when the contract had both express warranties (form-language)
and "as-is" waiver of warranties, the express warranties stood and the
"as-is" presumed to be for all *other* warranties - especially when the
buyer's realtor is the one who drafted agreement ...

In other words, while your statements on case holdings are  correct, in
practice, I believe that general "as-is" language can fly so long as it's
clear that was intended, and an intended part of the consideration
exchanged (lower price, whatever).

Just food for thought to throw out there. As when you look at the criteria,
it actually sounds like a much higher bar than what it seems to be in
practice. So long as it looks specifically bargained for and does not
contradict other terms in the REPSA, a general catch-all "as-is" will
typically do it - though of course good practice is to beef it up a bit.
Just you don't need to literally list what you are waiving; if anything,
that might create issues as with the right/wrong language anything *not* on
the list may not be considered part of the waiver ...

Just part of the fun of areas you can endlessly debate on the case-by-case
scenario.



Steve, thanks for your posting.  You are right, the cases say that the
disclaimer has to specifically list the liability and the provision must be
?bargained for.?

[cid:image001.png at 01D36F65.C65D4E20]

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.
wsbarppt.com] On Behalf Of Stephen Whitehouse
Sent: Saturday, December 2, 2017 12:07 PM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] WSBARP Digest, Vol 39, Issue 2

No on the farm disclosures issues, but I would take a look at what the
client has. The standard as-is language is probably not effective. Look at
the cases which say that you have to be more specific in terms of what you
are disclaiming liability for.



Carmen Rowe, Attorney


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