Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.
Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.
(Code 1933, § 109A-2 - 719, enacted by Ga. L. 1962, p. 156, § 1.)
Law reviews.- For article, "Consumer Protection Against Sellers Misrepresentations," see 20 Mercer L. Rev. 414 (1969). For article comparing consumer remedies under the Magnuson-Moss Act (15 U.S.C. §§ 2301-2312) and the U.C.C., see 27 Mercer L. Rev. 1111 (1976). For article discussing the applicability of warranty provisions under the Uniform Commercial Code to domestic solar energy devices, see 30 Mercer L. Rev. 547 (1979). For article, "Impracticability As Risk Allocation: The Effect of Changed Circumstances upon Contract Obligations for the Sale of Goods," see 22 Ga. L. Rev. 503 (1988). For article, "Contractual Limitations of Remedy and the Failure of Essential Purpose Doctrine," see 26 Ga. St. B.J. 113 (1990). For note, "Buyer's Right to Revoke Acceptance Against the Automobile Manufacturer for Breach of its Continuing Warranty of Repair or Replacement," see 7 Ga. L. Rev. 711 (1973). For note, "Enforcing Manufacturers' Warranty Exclusions Against Non-Privity Commercial Purchasers: The Need for Uniform Guidelines," see 20 Ga. L. Rev. 461 (1986). For comment on Felder v. Neeves, 36 Ga. App. 41, 135 S.E. 219 (1926), see 1 Ga. L. Rev. No. 1 P. 51 (1927). For comment, "Damage Awards and Computer Systems - Trends," see 35 Emory L.J. 255 (1986).
JUDICIAL DECISIONSContracts against liability for negligence are not favored by the law, and will be strictly construed, with every doubt resolved against party seeking their protection. Cash v. Armco Steel Corp., 462 F. Supp. 272 (N.D. Ga. 1978).
Parties cannot bar all remedies, avoid all damages.
- O.C.G.A. § 11-2-719 allows the parties to provide substitute remedies and limit damages but not to bar all remedies and avoid all damages. Freeman v. Hubco Leasing, Inc., 253 Ga. 698, 324 S.E.2d 462 (1985); Esquire Mobile Homes, Inc. v. Arrendale, 182 Ga. App. 528, 356 S.E.2d 250 (1987).
Exclusion of consequential damages in a vehicle's warranty was not invalid under O.C.G.A. § 11-2-719(2), as the car manufacturer did not attempt to exclude all express or implied warranties; rather, the implied warranties, although limited in duration, were not excluded, and accordingly, the limitation did not "fail of its essential purpose" within the meaning of § 11-2-719(2). Lee v. Mercedes-Benz USA, LLC, 276 Ga. App. 28, 622 S.E.2d 361 (2005).
O.C.G.A. § 11-2-719 does not require that a limitation of remedy be conspicuous, and in determining the validity of a limitation under that section conspicuousness is irrelevant. Apex Supply Co. v. Benbow Indus., Inc., 189 Ga. App. 598, 376 S.E.2d 694 (1988).
O.C.G.A. § 11-2-719, which explicitly permits the exclusion of consequential damages, does not impose any requirement of a conspicuous writing analogous to that of O.C.G.A. § 11-2-316(2). Webster v. Sensormatic Elec. Corp., 193 Ga. App. 654, 389 S.E.2d 15 (1989); McCrimmon v. Tandy Corp., 202 Ga. App. 233, 414 S.E.2d 15 (1991).
Modification need not be in writing.
- Modification or restitution of the remedy available for breach of warranty need not be in writing. Parole evidence to show the usage of the trade to explain or supplement the available remedies for breach of warranty was improperly excluded. Topeka Mach. Exch., Inc. v. Stoler Indus., Inc., 220 Ga. App. 799, 470 S.E.2d 250 (1996).
Contract remedies not exclusive.
- Award of lost profits damages to a supplier on the supplier's breach of contract counterclaim against a purchaser was not precluded by O.C.G.A. § 11-2-719(1) as the contract did not clearly express that remedies listed therein were exclusive. Advanced BodyCare Solutions, LLC v. Thione Int'l, Inc., 615 F.3d 1352 (11th Cir. 2010).
Defects in machinery.
- Where contract for machinery stated that the seller would repair or replace defective parts only and explicitly disallowed all other warranties, the buyer was bound by the contract and could not maintain an action for lost revenues resulting from defects in the machinery. Frick Forest Prods., Inc. v. International Hardwoods, Inc., 161 Ga. App. 359, 288 S.E.2d 625 (1982).
Consequential damages excluded by warranty limited to repair or replacement of defective goods.
- Seller was not liable for consequential damages resulting from alleged breach of warranty arising from defects in its goods where seller's written warranty specifically limited any liability to repairing or replacing any defective goods and where buyer had notice of the existence of the written warranty but never requested or saw a copy of the written warranty. A-Larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382, 300 S.E.2d 311 (1983).
Warranty excluding consequential damages not unconscionable.
- A warranty on a television set which excluded all incidental and consequential damages was not unconscionable under both a procedural and substantive analysis. NEC Technologies, Inc. v. Nelson, 267 Ga. 390, 478 S.E.2d 769 (1996).
Warranty damage limitation unconscionable.- Contractual provision regarding the sale of a particular medical device that attempted to limit damages for breach of the manufacturer's express warranty regarding replacement of the product was prima facie unconscionable. Horn v. Boston Sci. Neuromodulation Corp., F. Supp. 2d (S.D. Ga. Aug. 26, 2011).
Repurchase offer agreed to as part of agreement.
- Where it was determined that parties had agreed upon repurchase offer of seller in event of enforceable agreement, enforcement of such offer was reasonable measure of recovery under O.C.G.A. § 11-2-719(1). All-Co Drainage & Bldg. Prods., Inc. v. Umstead Enters., Inc., 123 Ga. App. 244, 180 S.E.2d 250 (1971).
Cited in John Deere Co. v. Lindsey Landclearing Co., 122 Ga. App. 827, 178 S.E.2d 917 (1970); Jacobs v. Metro Chrysler-Plymouth, Inc., 125 Ga. App. 462, 188 S.E.2d 250 (1972); White Farm Equip. Co. v. Jarrell & Clifton Equip. Co., 139 Ga. App. 632, 229 S.E.2d 113 (1976); Patron Aviation, Inc. v. Teledyne Indus., Inc., 154 Ga. App. 13, 267 S.E.2d 274 (1980); Teledyne Indus., Inc. v. Patron Aviation, Inc., 161 Ga. App. 596, 288 S.E.2d 911 (1982); Bamm, Inc. v. GAF Corp., 651 F.2d 389 (5th Cir. 1981); Hightower v. GMC, 175 Ga. App. 112, 332 S.E.2d 336 (1985).
RESEARCH REFERENCES
Am. Jur. 2d.
- 63 Am. Jur. 2d, Products Liability, §§ 217 et seq., 659 et seq. 67A Am. Jur. 2d, Sales, §§ 908-927.
6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:797.
C.J.S.- 77A C.J.S., Sales, §§ 68, 73, 261, 262.
U.L.A.- Uniform Commercial Code (U.L.A.) § 2-719.
ALR.
- Necessity of buyer's actual knowledge of disclaimer of warranty of personal property, 160 A.L.R. 357.
Validity of disclaimer of warranty clauses in sale of new automobile, 54 A.L.R.3d 1217.
Construction and effect of UCC § 2-316(2) providing that implied warranty disclaimer must be "conspicuous,", 73 A.L.R.3d 248.
Products liability insurance coverage as extending only to product-caused injury to person or other property, as distinguished from mere product failure, 91 A.L.R.3d 921.