ORS 72.3160¹
Exclusion or modification of warranties
  • livestock warranty

(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of ORS 72.2020 (Final written expression: parol or extrinsic evidence) on parol or extrinsic evidence negation or limitation is inoperative to the extent that such construction is unreasonable.

(2) Subject to subsection (3) of this section, 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. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

(3) Notwithstanding subsection (2) of this section:

(a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and

(b) When the buyer before entering into the contract has examined the goods or the sample or model as fully as the buyer desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to the buyer; and

(c) An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade; and

(d) With respect to the sale of livestock between merchants, excluding livestock sold for immediate slaughter, there shall be no implied warranty that the livestock animal is free from disease except where the seller had knowledge or reason to know that the animal was not free from disease at the time of the sale.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of ORS 72.7180 (Liquidation or limitation of damages) on liquidation or limitation of damages and ORS 72.7190 (Contractual modification or limitation of remedy) on contractual modification of remedy. [1961 c.726 §72.3160 (Exclusion or modification of warranties); 1979 c.636 §2]

Notes of Decisions

Oral representa­tion that hay baler was only two years old and had only been used one year was express warranty in view of plaintiff's express criterion that baler be newer than his present machine and, where warranty conflicted with written disclaimer, warranty prevailed over disclaimer. Miller v. Hubbard-Wray Co., 52 Or App 897, 630 P2d 880 (1981), Sup Ct review denied, as modified by 53 Or App 531, 633 P2d 1 (1981)

Where disclaimer is in large, boldfaced print, entirely in capital letters and labeled a disclaimer, it is conspicuous under this sec­tion. Agristor Credit Corp. v. Schmidlin, 601 F Supp 1307 (1985)

Chapter 72

Law Review Cita­tions

53 OLR 468-473 (1974); 58 OLR 545 (1980)

1 Legislative Counsel Committee, CHAPTER 72—Sales, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors72.­pdf (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 72, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­072ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information