## Facts

- Harry E. Hunt, Jr., a commercial fisherman, negotiated with Perkins Machinery Co., Inc., a distributor of Caterpillar products, to buy a Caterpillar diesel marine engine for his fishing vessel.
- Perkins’s sales manager prepared a written purchase order on a multi-copy pad; Hunt signed the front of the form and paid a deposit but did not read the reverse side.
- The front of the order contained a bold, capitalized statement that the order and acceptance were subject to “TERMS AND CONDITIONS.”
- The reverse side, headed “TERMS AND CONDITIONS,” contained numbered paragraphs including clauses purporting to exclude or limit implied warranties (including merchantability and fitness) and to confine warranties to those provided by the manufacturer.
- After execution, Perkins mailed Hunt a completed copy; Hunt still did not read the reverse-side terms.
- Hunt brought the vessel to a yard for preparation and installation; after a delivery delay Perkins offered to cancel, but Hunt declined because the vessel was already dismantled for the installation.
- After installation, some mechanical problems were corrected, but the engine continually emitted excessive heavy black smoke that dirtied the vessel and interfered with its use.
- Hunt claimed damages including installation charges paid to the yard and lost fishing income during periods the vessel was unusable while Perkins attempted corrective work.
- Hunt sued for breach of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose; Perkins asserted the reverse-side disclaimers barred the implied-warranty claims.

## Issues

1. Whether the purchase order’s reverse-side disclaimers of the implied warranties of merchantability and fitness were “conspicuous” and therefore effective under UCC §§ 2-316(2) and 1-201(10).
2. Whether, if the disclaimers were ineffective, Perkins was liable for breach of implied warranties based on the engine’s persistent smoke defect and resulting damages.

## Decision

- The Supreme Judicial Court of Massachusetts affirmed judgment for Hunt.
- The court held the disclaimers were not conspicuous and thus did not effectively exclude the implied warranties of merchantability or fitness.
- Because the implied warranties applied, the court upheld the trial judge’s finding of breach and the damages award.

## Legal Principles

- Under UCC § 2-316(2), exclusion of the implied warranty of merchantability must mention “merchantability” and, if in writing, must be conspicuous; exclusion of the implied warranty of fitness must be in a conspicuous writing.
- Under UCC § 1-201(10), conspicuousness turns on an objective test: whether the clause is written and presented so that a reasonable person against whom it operates ought to have noticed it.
- Conspicuousness is evaluated in context, including the document’s layout and the manner in which the form is presented and used; capital letters alone do not make a disclaimer conspicuous if its placement makes notice unlikely.
- A buyer’s failure to read a signed document does not alone control, but it may support the conclusion that the disclaimer was not presented in a way a reasonable buyer would notice, as required by the UCC.

## Conclusion

Because the boilerplate warranty disclaimers were not presented conspicuously on the form purchase order, they were ineffective under the UCC, and the seller remained liable for breach of implied warranties arising from the engine’s persistent smoke defect and the buyer’s resulting damages.


Hunt v. Perkins Mach. Co., Inc., 352 Mass. 535, 226 N.E.2d 228 (1967)