We’ve often noted, the Uniform Commercial Code (UCC) appears to give an unhappy consumer the right to return a defective carpet for a full refund even though she may have used it for a year or two while the dispute with the dealer was pending. We’ve also noted many times, however, it is often a simple matter to agree to alter the UCC as it is written.

One of the most common areas the law is amended by agreement concerns a seller’s options and obligations when a defect is alleged to exist in the goods sold and delivered. The agreement we are referring to may be no more than a signed sales order form.

This authority to vary the law of the UCC is found near the end of the code itself. This section provides, in part, that, subject to certain other sections that we’ll look at later:

“The agreement may provide for remedies in addition to or in substitution for those provided in this article (the sales 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 or replacement of non-conforming goods or parts; and “Resort to a remedy as provided is optional unless the remedy is expressly agreed, in which case it is the sole remedy.”

What this means is, subject to certain limitations, a buyer and seller can agree the seller shall only be responsible to repair and/or replace defective goods.

We say might not because, as noted above, there are some limitations to this agreement. One says, “where circumstances cause an exclusive or limited remedy to fail its essential purpose, remedy may be had as provided in this Act.” This seems to say if the defect could not be repaired, and if a replacement would be impossible, or impractical, then we must look to the “law of the code” which would allow the buyer to, in that case, demand all her money back no matter the agreement.

An agreement to limit a buyer’s remedy to repair or replacement also would seem to exclude a buyer’s right to consequential or incidental damages resulting from the delivery of defective goods. This is important. Consequential and incidental damages include such things as extra delivery charges, lost time from work and other items often claimed by a consumer to be a dealer’s responsibility.

We should note a court will disregard limitations of damages if it finds them to be unconscionable or contrary to a local consumer protection law. In addition, the last sentence of this section states, “limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable.” So, no matter what you say, you can never limit your liability for bodily injury caused by defects in the goods, or their installations.

How does a dealer make an agreement like this with his customers? Simply put it on his order form and having the customer sign it at the time the order is placed.

One example of this type of clause might be as follows: “It is expressly understood and agreed that the buyer’s sole and exclusive remedy shall be repair or replacement of defective goods and then only if the buyer has notified the seller of such defect within three (3) days of the discovery of the defect. Should, in the seller’s sole estimation, it be impractical or not possible to so repair or replace, the buyer’s sole and exclusive remedy shall then be refund of the purchase price upon return of the goods. In the event that the required notice is not timely given, the buyer shall be deemed to have accepted the goods in their existing condition and shall be barred from this or other remedies provided by law or otherwise.”