Division 2: Venue Clause Not Part of Contract in Sales Transaction Between Merchants
Describing UCC Article 2-207 as a "defiant lurking demon" condemning its interpreters to "depths of despair," Division 2 nonetheless wrestled with the demon long enough to conclude that the terms listed in a stream of invoices from a merchant seller to a merchant buyer -- a venue provision, disclaimers of liability, etc -- were not enforceable. Must read for your next battle of the forms case.
Copy of opinion also available here Download file
Reversing Jury Verdict, Court Holds Warranty Clause to be Unambiguous
This warranty clause in this new case read as follows:
WARRANTY. The Contractor shall guarantee all work against faulty materials and workmanship for a period of one year from the date of final payment and the performance bond shall remain in full force and effect for the period.
The clause was at issue in a suit between a roadway contractor and an owner over alleged defects in asphalt work. The jury awarded the owner $250,000 in damages. But the high court reversed, concluding the trial court made a mistake in allowing the jury to interpret the meaning of the warranty clause. Thanks to Construction Owners Lawblog for digging out this new case.