WEST virginia Legislature
2017 regular session
By
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to the Committee on the Judiciary.
A BILL to amend and
reenact §46A-6-107 of the Code of West Virginia, 1931, as amended, relating to
disclaimers and exclusions of warranties in consumer transactions for goods;
permitting waivers of warranty for defects and malfunctions in certain used
manufactured homes; permitting waivers of express and implied warranties in the
sale of certain used manufactured homes; and rendering all noncompliant
exclusions, modifications and limitations of warranties void.
Be it enacted by the
Legislature of West Virginia:
That §46A-6-107 of the
Code of West Virginia, 1931, as amended, be amended and reenacted to read as
follows:
ARTICLE 6. GENERAL
CONSUMER PROTECTION.
§46A-6-107. Disclaimer
of warranties and remedies prohibited.
(a) Notwithstanding any other provision of law to the
contrary with respect to goods which are the subject of or are intended to
become the subject of a consumer transaction, no merchant shall may:
(1) Exclude, modify or
otherwise attempt to limit any warranty, express or implied, including the
warranties of merchantability and fitness for a particular purpose, except
in the case of the sale of certain used manufactured homes under circumstances
described in subsection (b) of this section; or
(2) Exclude, modify or
attempt to limit any remedy provided by law, including the measure of damages
available, for a breach of warranty, express or implied.
Any such exclusion,
modification or attempted limitation shall be void.
(b) When a manufactured
home is more than four years old from its date of production and has been in
use by any one person for more than three continuous years, the sale of the
used manufactured home may be negotiated and completed with the following
limitations of warranties under the conditions provided below:
(1) Waiver of particular defect – A consumer may waive a warranty as to
a particular defect or malfunction when the merchant of the used manufactured
home provides a written disclosure of the defect or malfunction. The waiver is
not effective unless the waiver is made under the following circumstances:
(A) The waiver must be
in writing and in plain language;
(B) The written waiver
document clearly identifies the particular defect or malfunction of the used
manufactured home for which the warranty is to be waived;
(C) The written waiver
document also describes all additional defects or malfunctions, if any, that
have been disclosed to the merchant by a previous owner of the used
manufactured home and that may be discoverable by the merchant through a
reasonable inspection of the home;
(D) The written waiver
document clearly states what warranty, if any, applies to the disclosed defect
or malfunction and clearly states that the waiver does not apply to any other
condition, function or aspect of the used manufactured home and the sale; and
(E) The consumer and the
merchant both sign the written waiver document before the sales contract is
executed.
(2) “As Is” warranty – The used manufactured home may be sold “as is”
or without any express or implied warranties under the following circumstances:
(A) The contract for
sale of the used manufactured home contains a disclaimer, printed in bold-faced
type no smaller than 12 points in size with a heading in bold-faced type no
smaller than 16 points in size, with the entire notice contained in a box or
lined border, to read as follows:
“AS IS”
THIS MANUFACTURED HOME IS SOLD “AS
IS.” YOU WILL HAVE TO PAY FOR ANY REPAIRS NEEDED AFTER THE SALE. IF WE HAVE
MADE ANY PROMISES TO YOU, THE LAW SAYS WE MUST KEEP OUR PROMISES EVEN IF WE
SELL “AS IS.” TO PROTECT YOURSELF, ASK US TO PUT ALL PROMISES IN WRITING.
And;
(B) The consumer places
his or her signature and date within the box containing this disclaimer prior
to completing the contract for sale.
(c) Any exclusion,
modification or attempted limitation of warranties that is made in violation of
this section shall be void and may not be enforced to the prejudice of the
consumer.
NOTE: The purpose of this bill is
to permit the sale of used manufactured homes with “as is” warranties or sale
with waivers of warranties as to defects disclosed by the merchant.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.