Robert W. Gomulkiewicz, The Implied Warranty of Merchantability in Software Contracts: A Warranty No One Dares to Give and How to Change That, 16 J. Marshall J. Computer & Info. L. 393 (1997), https://digitalcommons.law.uw.edu/faculty-articles/77
The Implied Warranty of Merchantability in Software Contracts: A Warranty No One Dares to Give and How to Change That
John Marshall Journal of Computer and Information Law
Article 2B, software, warranty of merchantability
A disclaimer of ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITING THE IMPLIED WARRANTY OF MERCHANTABILITY, greets virtually everyone who prepares to use a computer software product. Software publishers disclaim the implied warranty of merchantability because they do not know what they might be promising if they give it. Though the disclaimer is routine, software publishers have little interest in needlessly eroding confidence in the quality of their products by conspicuously disclaiming a warranty with which their products may well comply. Disclaimers feed suspicion, voiced by industry critics, that software publishers care little about software quality or standing behind their products. Nonetheless, most software publishers believe it is unreasonable to shoulder the risk of agreeing to a contract term that, in Llewellyn's words, is "puzzling" and could result in unknown but large liability.
Underlying the implied warranty of merchantability is a salutary purpose: the purchaser of a good should be assured that it will meet a baseline standard of quality for goods of its kind. That the warranty is so commonly disclaimed reflects that this purpose remains unfulfilled. Potentially ambiguous phrasing of the warranty may be unavoidable under Article 2 of the Uniform Commercial Code (U.C.C.), given the broad scope of that article. Proposed U.C.C. Article 2B, however, presents an opportunity to create a version of the warranty of merchantability for computer software that addresses the problems of uncertainty and ill fit. If the warranty sets a reasonable and understandable measure of quality for software products, software publishers will be less apt to disclaim it, and end users will be better served by a warranty that exists in practice as well as in theory.