## Facts

- A trailer manufacturer sold a trucking company twenty-five new 1967 semi-trailers under a conditional installment sales contract totaling $141,756 (including finance charges).
- The buyer defaulted on installment payments; the seller repossessed and resold the trailers and sued for a $13,052.37 deficiency.
- The buyer defended and counterclaimed, alleging the trailers had defective radius rods causing premature tire wear and resulting losses.
- The contract was a one-page, close-print form prepared by the seller; only basic deal terms were typewritten.
- A printed “WARRANTIES” clause stated the buyer purchased the vehicle “as is” and that no express or implied warranty arose apart from the writing.
- The buyer asserted a long course of dealing (about 20 years) in which the seller did not sell new trailers “as is” and routinely corrected manufacturing defects at the seller’s expense.
- The buyer claimed it was unaware of the “as is” clause and that using such language for new trailers was contrary to trade practice and the parties’ prior dealings.

## Issues

1. Whether the printed “as is”/no-warranty clause effectively disclaimed implied warranties (including merchantability) in a sale of new trailers, given the clause’s presentation, wording, and the parties’ course of dealing and trade usage.
2. Whether genuine disputes of material fact regarding the disclaimer’s meaning, conspicuousness, and the existence of implied warranties made summary judgment improper on the seller’s deficiency claim and the buyer’s warranty counterclaim.

## Decision

- The court denied the seller’s motion for summary judgment seeking a deficiency judgment and dismissal of the buyer’s counterclaim.
- The court held the “as is”/no-warranty clause was not effective, as a matter of law on this record, to exclude implied warranties in this transaction.
- The court found triable issues concerning the clause’s conspicuousness and applicability to a sale of new, manufactured trailers, and concerning warranties arising from course of dealing and trade usage.

## Legal Principles

- Under the U.C.C., disclaimers of implied warranties must satisfy statutory requirements, including conspicuousness, and are evaluated in context.
- A general “as is” clause embedded in fine print may be insufficient to disclaim implied warranties for new goods, particularly where the contract form is ambiguous as to whether “as is” is intended to apply to new equipment.
- Course of dealing and usage of trade can support implied warranties and may limit the effect of a boilerplate disclaimer, creating factual questions that preclude summary judgment.
- On summary judgment, disputes over the meaning and effect of standard-form warranty language, and over the parties’ prior practices regarding defect correction, can be material and must be resolved at trial.

## Conclusion

The court refused to enforce a fine-print “as is” disclaimer to bar warranty-based defenses and counterclaims at the summary-judgment stage, holding that the disclaimer’s effectiveness in a sale of new trailers depended on disputed facts about conspicuousness, contractual meaning, and warranties arising from the parties’ longstanding course of dealing and trade practice.


Gindy Mfg. Corp. v. Cardinale Trucking Corp., 268 A.2d 345 (N.J. Super. Ct. Law Div. 1970)