Warranty and Guarantee Clauses: Best Practices for Contract Drafting

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Express warranties are specific promises made by the seller, either in writing or verbally. They directly state what the seller guarantees about the product or service.

Implied warranties are automatically created by law, regardless of whether they’re written in the contract. The two most common are:

  • Implied warranty of merchantability: The product is fit for its ordinary purpose
  • Implied warranty of fitness for a particular purpose: The product is suitable for a specific use the seller knows the buyer requires

Most commercial contracts include provisions to disclaim implied warranties, relying solely on express warranties instead.

In most commercial contexts, yes, but with important limitations. Courts generally enforce consequential damage exclusions between businesses but may invalidate them if:

  • Fraud or intentional misconduct is involved
  • The exclusion violates public policy
  • The limitation leaves the buyer without any meaningful remedy
  • Consumer protection laws apply (which often restrict such limitations)

Always consider jurisdiction-specific rules when drafting these limitations.

Best practices include:

  • Clearly identifying which components are third-party or open-source
  • Passing through manufacturer warranties for major components
  • Specifying who bears responsibility for third-party component failures
  • Addressing open-source license compliance explicitly
  • Considering indemnification for intellectual property claims related to third-party components

In many U.S. jurisdictions, yes. The Uniform Commercial Code requires disclaimers of implied warranties to be “conspicuous,” which courts often interpret as requiring capitalization. Other formatting like bold text or larger font size may also satisfy this requirement, but ALL CAPS remains the safest approach in U.S. contracts.

Other jurisdictions have different requirements, so consult local regulations.

Train your teams to:

  • Distinguish between product descriptions (which may create warranties) and expressions of opinion
  • Document performance claims with testing data
  • Include disclaimer language in marketing materials
  • Ensure contracts include integration clauses that prevent marketing materials from being considered part of the agreement
  • Review marketing materials through legal or compliance channels