ORS 72.7190¹
Contractual modification or limitation of remedy

(1) Subject to the provisions of subsections (2) and (3) of this section and of ORS 72.7180 (Liquidation or limitation of damages) on liquidation and limitation of damages:

(a) The agreement may provide for remedies in addition to or in substitution for those provided in this chapter and may limit or alter the measure of damages recoverable under this chapter, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and

(b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in the Uniform Commercial Code.

(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not. [1961 c.726 §72.7190 (Contractual modification or limitation of remedy)]

Notes of Decisions

Where no limita­tion of consequential damages was expressed in warranty at time of sale and limited warranty was neither presented to nor acknowledged by buyer until about two weeks after delivery of unit, there was no considera­tion to support limited warranty. Gaha v. Taylor-Johnson Dodge, 53 Or App 471, 632 P2d 483 (1981)

If limited and exclusive remedy of repair and replace­ment fails because seller was unwilling or unable to repair and buyer thus loses substantial benefit of bargain, then other remedies are restored including revoca­tion of acceptance under ORS 72.6080 (Revocation of acceptance in whole or in part). Young v. Hessel Tractor & Equip­ment Co., 99 Or App 262, 782 P2d 164 (1989), Sup Ct review denied, as modified by C.I.T. Group/Equip­ment Financing, Inc. v. Young, 99 Or App 270, 782 P2d 169 (1989)

Substitute or addi­tional contractual remedy may provide for windfall to party notwithstanding statutory Uniform Commercial Code purpose of restoring party to same posi­tion. Wagner v. McNeely, 161 Or App 215, 984 P2d 943 (1999)

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