## Facts

- Ed Van Den Broeke ordered a Bellanca aircraft through a dealer (Abide Aero Service) in April 1973 for use as a commercial crop-dusting plane.
- Van Den Broeke relied on Bellanca’s advertising and communicated his crop-dusting purpose to the dealer’s agent.
- The aircraft was delivered on June 6, 1973, along with a written warranty certificate that purported to disclaim implied warranties and limit remedies.
- A postcard intended to “activate” the warranty by notifying Bellanca of the purchase was returned to Bellanca by Van Den Broeke’s office or the dealer.
- After delivery, Van Den Broeke experienced mechanical difficulties, incurred business losses, and eventually sold the aircraft.
- Van Den Broeke sued for lost profits, repair costs, and resale loss, asserting breach of implied warranties (merchantability and fitness for a particular purpose) and negligent manufacture/design.
- The district court granted Bellanca summary judgment based on the warranty certificate’s disclaimers and remedy limitations.

## Issues

1. Whether, on the summary judgment record, the warranty certificate’s disclaimer and limitation-of-remedy terms were part of the parties’ sales agreement under Mississippi’s U.C.C., given that the certificate was delivered with the aircraft after the order.
2. Whether those purported contract terms could, as a matter of law, bar Van Den Broeke’s implied-warranty claims and negligence claim at the summary judgment stage.

## Decision

- The Fifth Circuit reversed the grant of summary judgment and remanded.
- The court held Bellanca had not shown as a matter of law that the disclaimer and remedy-limitation provisions were part of the parties’ agreement.
- Because incorporation of the disclaimers was not established, the disclaimers could not support summary judgment against the implied-warranty claims.
- For the same reason, summary judgment against the negligence claim was improper on the record presented.

## Legal Principles

- Under Mississippi’s U.C.C., implied warranties of merchantability and fitness for a particular purpose arise unless effectively disclaimed as part of the parties’ contract.
- Contract terms supplied after contract formation (such as warranty-certificate boilerplate delivered with the goods) are generally treated as proposed additional terms under U.C.C. § 2-207 principles and are not binding without assent or valid modification.
- Conduct such as returning a warranty “activation” postcard does not, by itself, conclusively establish knowing assent to added disclaimer and remedy-limitation terms for purposes of summary judgment.
- Summary judgment is inappropriate where a material fact question exists as to whether the buyer agreed to post-sale disclaimers that the seller invokes to defeat warranty and related claims.

## Conclusion

The Fifth Circuit required Bellanca to prove that its post-delivery warranty disclaimers and remedy limits became part of the sales contract before using them to defeat implied-warranty and negligence claims; because that showing was not made on summary judgment, the case was reversed and remanded for further proceedings.


Van Den Broeke v. Bellanca Aircraft Corp., 576 F.2d 582 (5th Cir. 1978)