790 S.W.2d 559 - Cate v. Dover Corp.

How this case has been cited

4 federal appellate · 134 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Concurring and dissenting opinion by

RAY, J.

¶2 *563APPENDIX

¶3[[Image here]]

RAY, Justice,

¶4concurring and dissenting.

¶5I concur in that portion of the court’s opinion requiring that a written disclaimer of the implied warranty of merchantability must be conspicuous to a reasonable person. I write separately, however, to take issue with the court’s immediate erosion of that standard by permitting a showing of actual knowledge of the disclaimer to override a lack of conspicuousness.

¶6The statute, on its face, provides for no actual knowledge exception. There is no room for judicial crafting of those omitted by the legislature. I would hold that the extent of a buyer’s knowledge of a disclaimer is irrelevant to a determination of its enforceability under Section 2.316(b) of the UCC.1

¶7The effect of actual knowledge is subject to debate among leading commentators on commercial law. The purpose of the objective standard of conspicuousness adopted by the court today reflects the view that “the drafters intended a rigid adherence to the conspicuousness requirement in order to avoid arguments concerning what the parties said about the warranties at the time of the sale.” J. White and R. Summers, Uniform Commercial Code § 12-5 (2d ed. 1980). An absolute rule that an inconspicuous disclaimer is invalid, despite the buyer’s actual knowledge, encourages sellers to make their disclaimers conspicuous, thereby reducing the need for courts to evaluate swearing matches as to actual awareness in particular cases. See W. Powers, Texas Products Liability Law § 2.0723 (1989). Today’s decision condemns our courts to a parade of such cases.

¶8. This approach is taken in Rehurek v. Chrysler Credit Corp., 262 So.2d 452 (Fla.Dist.Ct.App.), cert. denied, 267 So.2d 833 (Fla.1972) (inconspicuous disclaimer ineffective even though the buyer admitted having read it before the purchase).