Putting “as is” on an invoice does not automatically eliminate a seller’s obligations. California law distinguishes between implied warranties, express promises, and consumer protections that ordinary contract language cannot simply erase. Whether you sell equipment to another company or goods to individuals, an as is warranty disclaimer needs to fit the transaction. This article explains what the language can accomplish, when additional disclosures matter, and how to avoid contradicting your own sales terms.
What an as is warranty disclaimer actually does
For sales of goods, California Commercial Code section 2316 permits sellers to exclude certain implied warranties. These are obligations that can arise even when a seller never expressly promises anything about the product.
- Merchantability: When the seller is a merchant dealing in goods of that kind, goods generally must be fit for their ordinary purposes.
- Fitness for a particular purpose: This warranty can arise when the seller knows the buyer’s specific purpose and knows the buyer is relying on the seller’s judgment to select suitable goods.
Under section 2316, expressions such as “as is” or “with all faults” can exclude implied warranties when they call the buyer’s attention to that exclusion and make the absence of implied warranties plain, unless the circumstances indicate otherwise. Different rules apply to attempts to disclaim warranties through other wording.
The statute does not make “as is” a universal release. It does not automatically eliminate express warranties, title obligations, fraud claims, or other legal duties. Under Commercial Code section 2312(2), excluding or modifying the warranty of title requires specific language or circumstances giving the buyer reason to know that the seller does not claim title or is selling only whatever right or title the seller or a third person may have. Contracts primarily for services also require a different analysis from sales of goods.
Make the disclaimer clear before the sale
California Commercial Code section 2316 provides that a disclaimer of merchantability must mention “merchantability” and, if written, be conspicuous. A disclaimer of the implied warranty of fitness must be written and conspicuous. The statute separately recognizes qualifying “as is” language as another route to excluding implied warranties.
For California businesses, the practical approach is to make the exclusion prominent and specific rather than relying on fine print. A disclaimer should be part of the agreed transaction, not a surprise added after the buyer has committed.
- Place the provision in the quote, order form, or sales agreement the buyer reviews before agreeing.
- Use a clear heading, readable type, and formatting that draws attention.
- Identify the goods and explain which warranties are being excluded.
- Keep signed agreements, accepted terms, and relevant sales communications.
A footer first appearing on a post-sale invoice may not become part of the contract. Online sales likewise require attention to how terms are presented and accepted. A business contract review can address both the language and the process used to obtain agreement.
Consumer sales require additional safeguards
Do not assume a business-to-business clause works for consumer transactions. For covered consumer goods sold at retail in California, the Song-Beverly Consumer Warranty Act generally requires compliance with Civil Code sections 1792.3 and 1792.4 for an effective “as is” or “with all faults” exclusion. The Act’s scope and exceptions, including special rules for used consumer goods and mail-order catalog sales, must be checked for the particular transaction.
Section 1792.4 generally requires a conspicuous writing attached to the goods that clearly informs the buyer, before the sale, in simple and concise language that:
- The goods are sold “as is” or “with all faults.”
- The buyer bears the entire risk concerning their quality and performance.
- If the goods prove defective after purchase, the buyer, rather than the manufacturer, distributor, or retailer, assumes the entire cost of necessary servicing or repair.
For goods sold by mail-order catalog, the catalog may contain the required writing for each item in lieu of the ordinary prior-notification requirement. A website statement or receipt alone should not be treated as a substitute for the applicable statutory requirements. Whether Song-Beverly applies depends on the goods, their intended use, the seller, and the transaction.
Federal law also matters. Under 15 U.S.C. section 2308, a supplier generally may not disclaim or modify implied warranties on a covered consumer product if it makes a written warranty or enters into a covered service contract with the consumer at sale or within 90 days afterward. The statute permits limiting implied warranties to the duration of a written warranty of reasonable duration if the limitation is conscionable, stated in clear and unmistakable language, and prominently displayed on the face of the warranty. For used products, applicability depends on the product, transaction, and whether a written warranty or qualifying service contract triggers the federal restriction; used status alone does not answer the question.
Avoid promises that conflict with “as is”
Express warranties can arise from factual statements, descriptions, samples, or models that become part of the basis of the bargain. California Commercial Code section 2313 does not require the seller to use the word “warranty.”
For example, describing a machine as capable of a stated production rate or representing that a vehicle has a particular component may create an express warranty. Under section 2316, words or conduct creating an express warranty and words or conduct tending to negate or limit it must be construed as consistent wherever reasonable. The negation or limitation is inoperative to the extent that such a construction is unreasonable, subject to the applicable parol- or extrinsic-evidence rules in Commercial Code section 2202.
Review product listings, sales emails, demonstrations, and contract specifications together. Identify any express warranty that remains in effect, and do not describe goods as having verified characteristics when you have not verified them. An inspection opportunity may affect some implied warranty issues, but it does not erase every promise or excuse deception.
Keep warranty exclusions separate from liability limits
A warranty disclaimer addresses whether particular warranty obligations exist. A limitation of remedies addresses what relief is available if an obligation is breached. Those are different questions, and combining them into one broad sentence can create uncertainty.
California Civil Code section 1668 also restricts contractual attempts to exempt a party from responsibility for its own fraud, willful injury, or violation of law. “As is” should never be treated as permission to conceal known defects or misrepresent a product.
Before reusing a standard clause, check the buyer type, product category, existing promises, disclosure requirements, and acceptance process. The right provision depends on the actual sale.
Talk to a California business attorney
Itkin Law offers a free consultation for businesses and individuals with questions about warranty exclusions or sales agreements. Schedule a free consultation or call (424) 603-8888.
This article is attorney advertising and provides general information only. It is not legal advice and does not create an attorney–client relationship. The law changes, and this article reflects the law as of its publication date. Every situation is different — contact us to discuss how the law applies to your exact circumstances. See our full disclaimer.
