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Lady Themis
Lady Themis, Lawyer
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Regarding a contract I am reviewing for some home improvement.

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Regarding a contract I am reviewing for some home improvement. A clause states that in lieu of all warranties of fitness and in lieu of the warranty of merchantability, I will have only a 1 year warranty. Is there statue or law that governs warranties of fitness and merchantability in California and what is it?
Thank you for your question.

The statutory Consumer Warranties are found in Sections 1790 et. seq. of the California Civil Code. The warranties of merchantability and fitness are defined in Section 1790.1:

"§ 1791.1.

As used in this chapter:

(a) "Implied warranty of merchantability" or "implied warranty that goods are merchantable" means that the consumer goods meet each of the following:

(1) Pass without objection in the trade under the contract description.

(2) Are fit for the ordinary purposes for which such goods are used.

(3) Are adequately contained, packaged, and labeled.

(4) Conform to the promises or affirmations of fact made on the container or label.

(b) "Implied warranty of fitness" means (1) that when the retailer, distributor, or manufacturer has reason to know any particular purpose for which the consumer goods are required, and further, that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods, then there is an implied warranty that the goods shall be fit for such purpose and (2) that when there is a sale of an assistive device sold at retail in this state, then there is an implied warranty by the retailer that the device is specifically fit for the particular needs of the buyer.

(c) The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.

(d) Any buyer of consumer goods injured by a breach of the implied warranty of merchantability and where applicable by a breach of the implied warranty of fitness has the remedies provided in Chapter 6 (commencing with Section 2601) and Chapter 7 (commencing with Section 2701) of Division 2 of the Commercial Code, and, in any action brought under such provisions, Section 1794 of this chapter shall apply."

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Customer: replied 3 years ago.

Is the 1 year I am being asked to sign in lieu of all warranties of fitness (regarding a remodel contract) result in me giving up any rights, or is the one in the same as the statue?

Civil Code Section 1792.3 states:

"No implied warranty of merchantability and, where applicable, no implied warranty of fitness shall be waived, except in the case of a sale of consumer goods on an "as is" or "with all faults" basis where the provisions of this chapter affecting "as is" or "with all faults" sales are strictly complied with."

So, except in limited circumstances, the warranties cannot be waived.

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