concluding that sale of real property and improvements thereon is not a sale of goods
How later courts described this case
- concluding that sale of real property and improvements thereon is not a sale of goods
- advocating that the better rule would require the waiver to be in “clear and unequivocal language specifically naming the warranty that is being disclaimed”
- holding warranty was waived because disclaimer was "clear and free from doubt"
- "To the extent that it conflicts with this opinion, we overrule [ Robichaux ]."
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Melody Home Manufacturing Co. v. Barnes, 31 Tex. Sup. Ct. J. 47 (1987)
643 S.W.2d 392, 393 (Tex. 1982), overruled on other grounds sub nom. by Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349
Overruled — as noted by a later court
Id. ("To the extent that it conflicts with this opinion, we overrule [Robichaux].").
medium confidence
The opinion
SPEARS, Justice,
dissenting.
I respectfully dissent.
I do not agree with the majority that the language “no warranties, express or implied” is sufficient to exclude the builder’s implied warranty of fitness. The better rule is the waiver must be in clear and unequivocal language specifically naming the warranty that is being disclaimed. See Sloat v. Matheny, 625 P.2d 1031 (Colo.1981); Herlihy v. Dunbar Builders Corp., 92 Ill. *395 App.3d 310 , 47 Ill.Dec. 911 , 415 N.E.2d 1224 (1980).
In analogous areas of contract law this court has held clauses ineffective if not clear and specific, and I see no reason not to apply that same rule here. For example, in order for an indemnity agreement to protect an indemnitee from its own negligence the obligation must be expressed in clear and unequivocal terms. Eastman Kodak v. Exxon Corp., 603 S.W.2d 208 (Tex.1980); Fireman’s Fund Insurance Co. v. Commercial Standard Insurance Co., 490 S.W.2d 818 (Tex.1972). Similarly, in McMillan v. Klingensmith, 467 S.W.2d 193 (Tex.1972), we held unless a party is expressly named in a release, he is not released.
The warranty of habitability is implied in law to protect innocent consumers, and to hold builders accountable for their work. To effectuate the public policies underlying the implied warranty, a court should not consider the warranty waived except by very express and specific language which clearly reflects that the buyer knew the implied warranty did not attach to the sale of his home.
In the sale of a new home, the builder warrants that the house is constructed in a good and workmanlike manner, and is suitable for human habitation. Humber v. Morton, 426 S.W.2d 554 (Tex.1968). An effective waiver must give the buyer notice that he is waiving his warranty of habitability. The ordinary consumer when signing a contract for sale would not even conceive of the possibility that his house would not be built in a good and workmanlike manner. For that reason the waiver must at least be specific and express enough to inform the buyer specifically what he is waiving. An effective waiver of the implied warranty of fitness in the sale of a new home should refer to a warranty of “habitability” or disclaim “good and workmanlike manner.” In this case the language “no warranties express or implied” is not sufficient to notify the purchaser that he is waiving his implied warrant of habitability.
Other states have various requirements for effectively waiving the implied warranty of habitability. I believe the better reasoned authorities are those that at least require specific and express language. E.g., Sloat v. Matheny, 625 P.2d 1031, 1034 (Colo.1981); Peterson v. Hubschman Construction Co., 76 Ill.2d 31 , 27 Ill.Dec. 746, 748 , 389 N.E.2d 1154, 1156 (1979); Crowder v. Vandendale, 564 S.W.2d 879, 881 (Mo.1978); Casavant v. Campopiano, 114 R.I. 24 , 327 A.2d 831, 834 (1974).
I would, therefore, affirm the judgments of the court’s below.
RAY and ROBERTSON, JJ., join in this dissenting opinion.