Uniform Commercial Code Article 2 is generous about creating warranties. A seller who describes goods has warranted the description. A seller who shows a sample has warranted the whole. A merchant who says nothing at all has still warranted that the goods are fit for their ordinary purpose.
Then the same article tells the seller exactly how to undo all of it — in one section, with a form disclaimer written into the text.
That combination is the actual structure of a goods case. Article 2 is not a consumer protection statute; it is a default-rules statute, and almost every default runs in favor of the buyer only until the seller writes something different. What is left when the disclaimers are done is a narrow path with two places to fall off it: the notice requirement in § 336.2-607(3)(a), and the remedy limitation in § 336.2-719. This article is about that path, and about the two places Minnesota’s version departs from the uniform text.
Three ways a warranty comes into existence
Express warranties — Minn. Stat. § 336.2-313. No magic words required, and no intent required:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
Subsection (2) then draws the line that decides most express-warranty fights: “It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that the seller have a specific intention 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 of the goods does not create a warranty.”
Affirmation of fact, yes. Opinion, commendation, and value, no. A spec sheet is a warranty. “Best machine on the market” is not.
Merchantability — § 336.2-314. This one arises by operation of law, but only against a particular kind of seller: “a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” Subsection (2) gives merchantability six components — the goods must at least “pass without objection in the trade under the contract description,” be of fair average quality if fungible, be “fit for the ordinary purposes for which such goods are used,” run of even kind, quality and quantity, be “adequately contained, packaged, and labeled as the agreement may require,” and “conform to the promises or affirmations of fact made on the container or label if any.”
Two of those are underused. Clause (f) makes label copy a warranty independent of § 336.2-313, and clause (e) makes packaging and labeling failures a merchantability breach.
Fitness for a particular purpose — § 336.2-315. The whole section is one sentence:
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 under the next section an implied warranty that the goods shall be fit for such purpose.
This is not the merchantability warranty with a different name. Merchantability asks whether the goods work for what such goods normally do. Fitness asks whether they work for what this buyer needed, and it requires two facts about the seller’s knowledge — reason to know the particular purpose, and reason to know the buyer was relying on the seller’s skill or judgment. It does not require the seller to be a merchant. The seller who specifies the equipment for the job has assumed this warranty whether or not anyone said so.
How a seller takes them back
Section 336.2-316 is the disclaimer provision, and it is precise about form.
| Warranty | What § 336.2-316 requires to exclude or modify it |
|---|---|
| Express | Cannot simply be negated. Subsection (1): words creating an express warranty and words limiting warranty “shall be construed wherever reasonable as consistent with each other,” and, subject to the parol evidence rule in § 336.2-202, “negation or limitation is inoperative to the extent that such construction is unreasonable” |
| Implied warranty of merchantability | “[T]he language must mention merchantability and in case of a writing must be conspicuous” |
| Implied warranty of fitness | “[T]he exclusion must be by a writing and conspicuous” — no magic word, but writing plus conspicuousness |
| All implied warranties, alternative route | Subsection (3)(a): “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty” |
Three points a drafter and a plaintiff should both hold onto.
1. “Merchantability” is a required word. Subsection (2) says the language “must mention merchantability.” A disclaimer that excludes “all implied warranties” in general terms, however emphatic, has not mentioned it. This is the single most common defect in a form contract.
2. “Conspicuous” is defined, and it is not a font question. Minn. Stat. § 336.1-201(b)(10) defines it: a term is conspicuous when it is “so written, displayed, or presented that, based on the totality of circumstances, a reasonable person against which it is to operate ought to have noticed it.” The same paragraph adds that “[w]hether a term is ‘conspicuous’ or not is a decision for the court.” That is a totality test decided by the judge, not the jury — which makes it a summary judgment issue, and makes the presentation of the document (where the clause sits, what surrounds it, how the buyer encountered it) part of the record you have to build.
3. The statute supplies a safe-harbor sentence for fitness only. Subsection (2): “Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’” That sentence does not excuse the merchantability requirement, because merchantability needs its own word.
Subsection (3) adds two more exclusion routes that require no drafting at all: (b) where the buyer “has examined the goods or the sample or model as fully as desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed”; and (c) an implied warranty “can also be excluded or modified by course of dealing or course of performance or usage of trade.”
And subsection (4) points forward to the trap: “Remedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (sections 336.2-718 and 336.2-719).”
Trap one: the buyer who complains but does not notify
A buyer who accepts goods and later discovers they are defective has to do one thing before anything else. Section 336.2-607(3):
Where a tender has been accepted
(a) the buyer must within a reasonable time after the buyer discovers or should have discovered any breach notify the seller of breach or be barred from any remedy
Read the last five words. Not “may lose some damages.” Barred from any remedy. This is a condition on the buyer’s right to recover for goods that have been accepted, and it operates whether or not the seller was prejudiced by the delay and whether or not the seller already knew about the problem from another source.
Three features make it dangerous:
- The clock runs from constructive discovery. “[A]fter the buyer discovers or should have discovered any breach.”
- “Reasonable time” is not defined. Which means it is decided case by case, on the buyer’s circumstances, after the fact, with the seller arguing for the shortest plausible period.
- The notice has to be of breach. A service call, a complaint about performance, or a request for help is not obviously notice that the seller has breached. Buyers routinely spend months in support tickets and then discover they have no record of ever having told the seller it was in breach.
Section 336.2-714(1) then wires the notice requirement directly into the damages provision: the buyer may recover damages for nonconformity “[w]here the buyer has accepted goods and given notification (subsection (3) of section 336.2-607).” The remedy is drafted to depend on the notice.
The practical rule is simple and almost nobody follows it: put it in writing, use the word breach, date it, and send it the week you know.
Trap two: the remedy the contract already picked for you
Section 336.2-719 lets the parties replace the Code’s remedies with their own:
(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages,
(a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and
(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.
That is how the standard “repair or replace, and that is your only remedy” clause works. A buyer with a proven breach of a proven warranty may still be entitled to nothing but another attempt at repair.
Then comes the escape hatch, and it is one sentence:
(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter.
This is the most valuable sentence in Article 2 for a buyer. It does not ask whether the clause was conspicuous, whether it was bargained for, or whether the buyer read it. It asks a functional question: did the limited remedy actually do what it was supposed to do? A repair-or-replace remedy exists to give the buyer conforming goods. A seller who cannot or will not make the goods conform — after repeated attempts, after unreasonable delay, after the parts stop being available — has left the buyer with a remedy that produced nothing. When that happens, the statute says “remedy may be had as provided in this chapter,” which returns the buyer to the Code’s own remedies.
The failure-of-essential-purpose record is built out of the repair history: dates in, dates out, days of downtime, the same failure recurring, and what the seller said each time.
Subsection (3) governs the other half of the standard clause:
(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.
Note what it does and does not say. Consequential damage exclusions are presumptively valid. The unconscionability limit is real but general — except in one place, where the Code flips the presumption: limiting consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable. And the same sentence closes the door on the commercial buyer: “limitation of damages where the loss is commercial is not.”
What comes back when the limitation falls
If the disclaimer fails, the notice was given, and the limited remedy failed of its essential purpose, the buyer is back inside the Code’s remedy structure.
Section 336.2-711 governs where the buyer never accepted, or rightfully rejected, or justifiably revoked acceptance: the buyer “may cancel and with or without having done so may in addition to recovering so much of the price as has been paid” either “cover” and take damages under § 336.2-712, or recover damages for nondelivery under § 336.2-713. Subsection (3) gives the buyer a security interest in goods in the buyer’s possession or control “for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody,” with the right to hold and resell them like an aggrieved seller.
Section 336.2-714 governs the more common case — goods accepted and defective. Subsection (2) states the measure:
The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
That is a valuation formula, not a repair-cost formula. Repair cost is frequently the best evidence of the difference in value, but the statutory measure is value-as-warranted minus value-as-accepted, measured at the time and place of acceptance — and the “special circumstances” clause is what a buyer uses when that measure does not capture the loss.
Section 336.2-715 supplies the rest. Incidental damages include “expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.” Consequential damages include “any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise,” and “injury to person or property proximately resulting from any breach of warranty.”
Two limits are built into that definition. The seller must have had reason to know of the buyer’s requirements at the time of contracting — which is a documentation problem, solved by what the buyer told the seller during the sales process. And the loss must be one that “could not reasonably be prevented by cover or otherwise” — which is a mitigation requirement written into the definition of the damages rather than raised as a defense.
Minnesota’s two departures from the uniform text
Most of Article 2 as enacted in Minnesota is the uniform text. The statute of limitations is not. Section 336.2-725 carries the standard rule in subsections (1) and (2) — four years from accrual, reducible by original agreement to not less than one year, never extendable, and accruing “when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach,” with breach of warranty occurring “when tender of delivery is made” unless the warranty “explicitly extends to future performance.” Then Minnesota adds two paragraphs that are not part of the uniform section.
Departure one — goods that become part of a building.
The limitations in this section do not apply to actions for the breach of any contract for sale of a grain storage structure or other goods that are incorporated into an improvement to real property, except equipment and machinery. These actions are subject only to the statute of limitations set forth in section 541.051.
That paragraph moves an entire category of goods cases out of the UCC’s four-year clock and into the construction limitations and repose statute — with its two-year discovery period and its ten-year bar on accrual measured from substantial completion. It is a substantially different timing regime, and the “except equipment and machinery” carve-out mirrors the exclusion in § 541.051, subd. 1(e). If the goods in your case ended up attached to a building, do not calendar the case off § 336.2-725 without reading that paragraph. (See Minnesota’s Construction Repose Statute Does Not Bar Your Lawsuit. It Prevents Your Claim From Ever Existing.)
Departure two — the non-merchant sale that damages other property.
This section does not apply to claims against sellers of goods for damages to property caused by the goods where the property that is damaged is not the goods and the sale is not a sale between parties who are each merchants in goods of the kind.
Read the conditions together: damage to property other than the goods themselves, and a sale that is not merchant-to-merchant. Where both are true, § 336.2-725 does not supply the limitations period. The furnace that burns the house, sold by a merchant to a homeowner, is the paradigm case — and it is not on the UCC’s four-year clock.
In a Minnesota consumer sale, “as is” is not enough
This is the departure with the widest practical reach, and it is not in chapter 336 at all.
Section 336.2-316(3)(a) says that “as is” and “with all faults” exclude all implied warranties. Minnesota Statutes § 325G.18 says that is not true in a consumer sale.
Subdivision 1. Merchantability and fitness for intended purpose. Unless disclaimed in the manner prescribed in subdivision 2, every consumer sale in this state shall be accompanied by an implied warranty that the goods are merchantable, and, in a consumer sale where the seller has reason to know that the goods are required for a particular purpose and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, an implied warranty of fitness. A seller may, however, limit damages or remedies for breach of implied warranties as provided in chapter 336.
Subd. 2. Disclaimers. No consumer sale on an “as is” or “with all faults” basis shall be effective to disclaim the implied warranty of merchantability, or, where applicable, the implied warranty of fitness, unless a conspicuous writing clearly informs the buyer, prior to the sale, in simple and concise language each of the following:
(1) the goods are being sold on an “as is” or “with all faults” basis; and
(2) the entire risk as to the quality and performance of the goods is with the buyer.
Four requirements, all of them independent: a conspicuous writing; delivered prior to the sale; in simple and concise language; stating both of the listed points — not just that the sale is “as is,” but that the entire risk as to quality and performance is on the buyer. (The subdivision adds one accommodation: in a mail order catalog sale, “the catalog may contain the required writing in lieu of the requirement of notification prior to the sale.”)
“Consumer sale” is defined narrowly enough to matter. Section 325G.17, subd. 2: “a sale of new goods, or as regards an express warranty, any goods, purchased primarily for personal, family, or household purposes, and not for agricultural or business purposes.” So the implied-warranty rule in § 325G.18 reaches new goods bought for personal, family, or household use.
And the consequence of getting it wrong is not just an ineffective disclaimer. Section 325G.20: “A violation of sections 325G.17 to 325G.20 shall be treated as a violation of section 325F.69. The remedies provided by sections 325G.17 to 325G.20 are cumulative and shall not be construed as restricting any remedy that is otherwise available.”
Section 325F.69 is the Prevention of Consumer Fraud Act, and Minn. Stat. § 8.31, subd. 1 lists “the Prevention of Consumer Fraud Act (sections 325F.68 to 325F.70)” among the laws the attorney general investigates. Subdivision 3a then provides that “[i]n addition to the remedies otherwise provided by law, any person injured by a violation of any of the laws referred to in subdivision 1 may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney’s fees, and receive other equitable relief as determined by the court.”
So a defective “as is” disclaimer in a Minnesota consumer sale is a route to a fee-shifting statute. That changes the economics of a case that would otherwise be worth less than the cost of bringing it. Minnesota courts have addressed what a private plaintiff must show to use the § 8.31, subd. 3a remedy, and this article does not state a rule on that question — but the statutory path exists and it starts in § 325G.20.
For smaller goods disputes, the venue question is worth settling early. See Minnesota’s Conciliation Court Handles Claims Up to $20,000. Most People Use It Wrong, and Some Should Not Use It at All.
What to do
If you bought defective goods:
- Send written notice of breach immediately, and use the word. Section 336.2-607(3)(a) bars the remedy, not just part of it, and the clock runs from when you should have discovered the problem.
- Read the disclaimer for the word “merchantability.” If it is not there, the merchantability warranty was not excluded under § 336.2-316(2).
- Keep the repair log. Dates in, dates out, downtime, recurring failures, and what the seller said. That log is the § 336.2-719(2) case, and § 336.2-719(2) is what defeats a repair-or-replace limitation.
- If it was a consumer sale of new goods, check § 325G.18, subd. 2 before conceding an “as is” sale. A conspicuous writing, before the sale, in simple language, saying both required things — all four, or the disclaimer does not work.
- Check the calendar carefully if the goods were installed in a building. Section 336.2-725’s Minnesota paragraph may put the case on § 541.051’s clock instead.
If you sell goods:
- Say “merchantability.” Say it conspicuously, in a writing, positioned where a reasonable person would notice it — § 336.1-201(b)(10) makes that a totality question for the court.
- Understand what an exclusive limited remedy does and does not buy. Section 336.2-719(1)(b) requires that exclusivity be expressly agreed, and § 336.2-719(2) takes the whole limitation away if the remedy fails of its essential purpose. Perform the repair obligation; the clause depends on it.
- Do not rely on “as is” in a Minnesota consumer sale. Section 325G.18, subd. 2 sets four requirements, and § 325G.20 turns a failure into a § 325F.69 problem.
- Watch what the sales team knows. Section 336.2-315 arises from the seller’s reason to know the buyer’s purpose and reliance, and § 336.2-715(2)(a) measures consequential damages by what the seller had reason to know at the time of contracting. Both are created by conversations nobody documented.
The observation
Article 2 is often described as pro-buyer because it creates warranties the parties never negotiated. That gets it exactly backwards. Every warranty Article 2 creates, Article 2 also tells the seller how to eliminate — and the instructions are in the statute. Say “merchantability,” say it conspicuously, say “as is,” cap the remedy at repair or replacement, exclude consequential damages. A competent form contract does all five in a paragraph.
What the Code withholds from the seller is much narrower, and it is procedural rather than substantive. The seller cannot make the buyer’s notice unnecessary, and the seller cannot keep a remedy that does not work. Section 336.2-607(3)(a) is a condition the buyer must satisfy; § 336.2-719(2) is a condition the seller must satisfy. Between them they describe the same idea from opposite sides: the Code enforces the parties’ allocation of risk right up to the point where one of them stops performing, and then it stops enforcing it.
Minnesota adds one more thing on top, and it is the part most often missed by out-of-state counsel drafting into this state. In a Minnesota consumer sale of new goods, the Code’s own “as is” shortcut does not work. Section 325G.18 requires a specific pre-sale writing saying two specific things, and § 325G.20 makes the failure a consumer fraud violation reachable through a fee-shifting statute. A national form that satisfies § 336.2-316(3)(a) and stops there satisfies the UCC and violates Minnesota law.
Madgett Law, LLC handles Minnesota disputes over defective goods and equipment — warranty and disclaimer analysis, revocation of acceptance, remedy limitations that failed, and consumer sales where the paperwork did not do what the seller thought it did. If you bought something that does not work, or you are being told your warranty was disclaimed, send us a message or call 612-470-6529.
Sources: Minn. Stat. § 336.2-313(1)(a)–(c), (2) (express warranties; affirmation, description, sample or model; no magic words; value, opinion, and commendation excluded); § 336.2-314(1), (2)(a)–(f), (3) (implied warranty of merchantability; merchant with respect to goods of that kind; the six merchantability components; other implied warranties from course of dealing or usage of trade); § 336.2-315 (implied warranty of fitness for a particular purpose); § 336.2-316(1)–(4) (exclusion or modification; consistent construction of express warranty and limitation; the “must mention merchantability” and conspicuousness requirements; the fitness safe-harbor sentence; “as is” and “with all faults”; examination or refusal to examine; course of dealing, course of performance, and usage of trade; cross-reference to §§ 336.2-718 and 336.2-719); § 336.1-201(b)(10) (definition of “conspicuous”; whether a term is conspicuous is a decision for the court); § 336.2-607(3)(a), (4) (notice of breach within a reasonable time after discovery “or be barred from any remedy”; burden on the buyer); § 336.2-711(1)–(3) (buyer’s remedies in general; cover; damages for nondelivery; security interest in rejected goods); § 336.2-714(1)–(3) (damages for accepted goods; the value-as-warranted measure; incidental and consequential damages in a proper case); § 336.2-715(1), (2)(a)–(b) (incidental and consequential damages; seller’s reason to know at the time of contracting; loss not preventable by cover; injury to person or property); § 336.2-719(1)–(3) (contractual modification or limitation of remedy; exclusivity must be expressly agreed; failure of essential purpose; unconscionability limit on consequential damage exclusions and the prima facie rule for personal injury from consumer goods); § 336.2-725(1), (2) and the two Minnesota paragraphs (four-year period, reduction to not less than one year, accrual at tender of delivery, explicit extension to future performance; goods incorporated into an improvement to real property subject only to § 541.051; inapplicability to non-merchant sales causing damage to property other than the goods) (History: 1965 c 811 s 336.2-725; 1989 c 187 s 1; 1991 c 352 s 1; 1993 c 305 s 1). Minn. Stat. § 325G.17, subds. 1–5 (definitions; “consumer sale”); § 325G.18, subds. 1 and 2 (implied warranties in consumer sales; the four “as is” disclaimer requirements; mail order catalog accommodation) (History: 1973 c 692 s 2); § 325G.20 (violation treated as a violation of § 325F.69; cumulative remedies) (History: 1973 c 692 s 4); § 8.31, subd. 1 (laws the attorney general investigates, including the Prevention of Consumer Fraud Act, §§ 325F.68 to 325F.70) and subd. 3a (private civil action, damages, costs and disbursements, costs of investigation, and reasonable attorney’s fees). All from the Minnesota Office of the Revisor of Statutes, 2025 Minnesota Statutes. Currency check: the Article 2 sections cited carry History lines ending in 1986 or earlier except § 336.2-725 (through 1993 c 305 s 1); §§ 325G.17, 325G.18, and 325G.20 carry 1973 c 692; § 8.31’s History line includes a 2025 first special session entry (1Sp2025 c 13 art 8 s 8), and the subdivision 1 and 3a text quoted here is the current text as published in the 2025 Minnesota Statutes. No 2026 session entries appear on the pages for any section cited.
This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. Whether a warranty was created, effectively disclaimed, or timely asserted depends on the contract, the goods, the parties, and the dates. No outcome is promised or implied.