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Westfield Ins. Co. v. Huls Am.6/9/1998
essential purpose and is unconscionable in its limitations. Appellee argues that the warranty terms are clear and that it fulfilled the warranty conditions, and the warranty did not fail thereby. The question of whether contract terms are clear or ambiguous is a question of law for the court. Ohio Historical Soc. v. Gen. Maintenance & Eng. Co. (1989), 65 Ohio App.3d 139, 146, 583 N.E.2d 340, 344. Regarding warranties, Ohio courts have held that in order to "constitute a valid contract there must be parties capable of contracting, a lawful subject matter, a sufficient consideration, a meeting of the minds of the parties, an actual agreement between the parties to do or to forbear doing the thing proposed in the agreement, and a compliance with the law in respect of any formal requisites which may pertain to the contract." Will v. View Place Civic Assn. (1989), 61 Ohio Misc.2d 476, 483, 580 N.E.2d 87, 92, citing Feldman v. Roth (1932), 12 Ohio Law Abs. 121.
As in Ohio, N.Y. law provides that parties may limit or exclude from their warranties all express or implied warranties, limit or exclude the implied warranties of merchantability and fitness for a particular purpose, and limit remedies for breach of warranty. NY U.C.C. 553, Section 2316. The Ohio Supreme court has held that " aiver as applied to contracts is a voluntary relinquishment of a known right." White Co. v. Canton Trans. Co. (1936), 131 Ohio St. 190, 5 O.O. 548, 2 N.E.2d 501. Contracting "parties are free tsdetermine which warranties shall accompany their transaction. Accordingly, both the implied warranties of merchantability and of fitness may be excluded or modified, if the exclusion or notification meets the criteria set forth in R.C. 1302.29(B)." Chemtrol, 42 Ohio St.3d at 55, 537 N.E.2d at 638. This court finds that the contracting parties in the instant matter, HULS and UAP Columbus, are business entities that had voluntarily entered into a limited warranty agreement, whereby certain rights were gained and certain others relinquished.
Express warranties regarding goods can be created by a seller of the goods by affirmation, promise or description of the qualities of the goods sold. R.C. 1302.26. See, also, N.Y. U.C.C. Section 2313. NY U.C.C. Section 2317(c) provides that any express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. However, N.Y. U.C.C. Sections 2314 and 2315 further provide that the implied warranties of merchantability and fitness for a particular purpose may be excluded or modified pursuant to the provisions contained in Section 2316.
A party seeking to exclude or modify the implied warranties of merchantability or fitness for a particular use, or any part thereof, must do so in writing and in a conspicuous manner. R.C. 1302.29(B). See, also, N.Y. U.C.C. 2316(2). The term "conspicuous" is defined by the Ohio Revised Code as being "so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals * * * is `conspicuous.' Language in the body of a form is `conspicuous' if it is in larger or other contrasting type or color." R.C. 1301.01(J). See, also, N.Y. U.C.C. 1201(10). From the record, this court finds that the disclaimer language in appellee's two-page warranty was conspicuous pursuant to R.C 1302.29(B).
R.C. 1302.93(A)(1) provides that " he agreement * * * may limit * * * the buyer's remedies to * * * repair and replacement of nonconforming goods or parts." Courts have held that " section 1302.93(A)(2) of the Ohio Revised Code provides: `Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is t
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