Implied warranties: what the sales-law text says, and the federal limit on disclaiming them

A warranty does not have to be written down to exist. State sales law creates unwritten, "implied" promises about goods, and it sets rules for when a seller can exclude them. A federal statute then limits those exclusions in two situations. This page sets out the text. We use Idaho's enacted version of the state rules as one state's example, so read your own state's version too.

The short answer

Express warranty: any affirmation of fact or promise by the seller relating to the goods that becomes part of the basis of the bargain creates an express warranty. Formal words such as "warrant" are not required, but a statement merely of value or the seller's opinion does not create one.¹
Implied warranties: if the seller is a merchant for goods of that kind, a warranty of merchantability is implied unless excluded. If the seller knows the buyer's particular purpose and that the buyer is relying on the seller's skill or judgment, a warranty of fitness for that purpose is implied unless excluded.² ³
Excluding them: to exclude merchantability the language must mention merchantability and, in a writing, be conspicuous. Expressions like "as is" or "with all faults" can exclude all implied warranties unless the circumstances indicate otherwise.⁴
The federal limit: a supplier that gives a written warranty on a consumer product, or enters into a service contract with the consumer at the time of sale or within 90 days after, may not disclaim or modify implied warranties. It may limit their duration to the duration of a written warranty in some cases, but a warrantor meeting the federal minimum standards for warranty may not limit their duration at all.⁶ ⁷

Express warranties

Idaho Code § 28-2-313 says express warranties are created by any affirmation of fact or promise relating to the goods that becomes part of the basis of the bargain, by any description of the goods that is part of the basis of the bargain, and by any sample or model that is part of the basis of the bargain. The seller need not use formal words or intend to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation does not create one.¹

Implied warranties

Section 28-2-314 says that, unless excluded or modified, a warranty that goods are merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. To be merchantable, goods must at least pass without objection in the trade under the contract description, be of fair average quality in the case of fungible goods, be fit for the ordinary purposes for which such goods are used, run within the permitted variations of even kind, quality and quantity, be adequately contained, packaged and labeled as the agreement may require, and conform to promises or affirmations of fact made on the container or label.²

Section 28-2-315 says that where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit for that purpose.³

How a seller can exclude or limit them

Section 28-2-316 sets the rules.⁴

Exclusion rules in § 28-2-316
Subject	What the text says
Merchantability	The language must mention merchantability and, if in a writing, be conspicuous.⁴
Fitness for a particular purpose	The exclusion must be by a writing and conspicuous. Language such as "There are no warranties which extend beyond the description on the face hereof" is sufficient.⁴
"As is" language	Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language that, in common understanding, calls the buyer's attention to the exclusion and makes plain there is no implied warranty.⁴
Examination of the goods	If before contracting the buyer examined the goods or sample as fully as desired, or refused to examine them, there is no implied warranty for defects that an examination ought in the circumstances to have revealed.⁴
Course of dealing	An implied warranty can also be excluded or modified by course of dealing, course of performance or usage of trade.⁴

Section 28-2-719 separately lets an agreement provide remedies in addition to or in place of those in the chapter, and limit the buyer's remedies, for example to repair and replacement. A remedy is optional unless expressly agreed to be exclusive. Where an exclusive or limited remedy fails of its essential purpose, remedies as provided in the chapter may be had. Consequential damages may be limited or excluded unless that is unconscionable, and limiting consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable.⁵

The federal limit: 15 U.S.C. 2308

Section 108 of the Magnuson-Moss Warranty Act, at 15 U.S.C. 2308, restricts exclusions. No supplier may disclaim or modify any implied warranty to a consumer on a consumer product if the supplier makes any written warranty on the product, or if, at the time of sale or within 90 days after, it enters into a service contract with the consumer that applies to the product.⁶ Implied warranties may be limited in duration to the duration of a written warranty of reasonable duration, if the limitation is conscionable and is set out in clear and unmistakable language and prominently displayed on the face of the warranty.⁶ A disclaimer, modification or limitation made in violation of the section is ineffective for purposes of the chapter and State law.⁶ Section 2308(b)'s duration limit is stated to apply "other than section 2304(a)(2)." Under 15 U.S.C. 2304(a)(2), in order to meet the federal minimum standards for warranty, a warrantor warranting a consumer product by a written warranty "may not impose any limitation on the duration of any implied warranty on the product."⁷ Our guide on full vs. limited warranty explains the federal labels. Section 2308(a)(2) speaks of a supplier that itself "enters into a service contract with the consumer."⁶ Our guide on "as is" sales and service contracts discusses the FTC's guidance on a seller that sells service contracts only as an agent for another company.

Which text applies to which situation
Situation	What the text says
The seller gives no written warranty and no service contract	The state-law exclusion rules in section 28-2-316 are the ones described above.⁴
The seller says the goods are sold "as is"	Under section 28-2-316(3)(a), such language can exclude all implied warranties unless the circumstances indicate otherwise.⁴
The seller gives a written warranty on a consumer product	Under 15 U.S.C. 2308(a)(1), the supplier may not disclaim or modify implied warranties, though duration may be limited as in 2308(b).⁶
The seller enters a service contract with the consumer at sale or within 90 days	Under 15 U.S.C. 2308(a)(2), the supplier may not disclaim or modify implied warranties.⁶
The warrantor's written warranty meets the federal minimum standards	Under 15 U.S.C. 2304(a)(2), the warrantor may not impose any limitation on the duration of any implied warranty on the product.⁷

Our guide on "as is" sales and service contracts applies the federal rule to a vehicle sale, and our Magnuson-Moss explainer and guide on suing under the Act cover the rest of the federal statute.

What this page leaves out

The Idaho chapter says that, unless the context otherwise requires, it "applies to transactions in goods,"⁸ and 15 U.S.C. 2308 speaks of a "consumer product."⁶ This page does not apply either text to any particular contract. It does not cover how long a buyer has to bring a claim; it does not apply any rule to a particular sale; and it does not say whether a given disclaimer is conspicuous or conscionable. Those depend on the document and the facts.

Where this fits in our standard

Point 1 of our standard asks whether a contract's terms and exclusions are available in plain language before purchase, and point 7 asks about marketing that contradicts the contract's own exclusions. Reading a disclaimer is part of reading those terms. The Register describes how we apply the standard. This page describes statutes, not any seller or provider.

How to verify this yourself

Read Idaho Code Title 28, Chapter 2, sections 28-2-313 to 28-2-316 and 28-2-719 on the Idaho Legislature site (references 1 to 5 and 8).
Find your own state's enacted version of the same rules in its code; wording and numbering can differ from Idaho's.
Read 15 U.S.C. 2308 on the Government Publishing Office's GovInfo site (reference 6).
Read the warranty or contract you were given. A disclaimer must be in the document to be applied.

What this page is not

This is general information about the text of statutes, not legal advice. It uses one state's enacted version of sales law, does not say how any court would read a particular disclaimer, and does not say whether you have a claim. Statutes change; confirm the current text for your state before relying on it.

What to do next

If you hold a written warranty or a service contract, find any sentence that limits or disclaims implied warranties, then compare it to the table above. For the wider picture, see our warranty contract checklist, or return to the home warranty hub.