Okla. Stat. tit. 12A § 2-719

Current through Laws 2024, c. 9.

Section 2-719 - Contractual Modification or Limitation of Remedy

(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages,

(a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and

(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act.

(3) 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.

Okla. Stat. tit. 12A, § 2-719

Laws 1961, SB 36, p. 100, § 2-719.

Oklahoma Code Comment

(1) Previous Oklahoma law is in accord, but with qualifications. Updegrove v. Gould Balance Valve Co., 57 Okl. 245, 156 P. 684 (1916) (a provision restricting the buyer's remedies to the replacement of defective parts was held binding); Long v. Ideal Elec. & Mfg. Co., 120 Okl. 63, 250 P. 504 (1926) (a clause restricting the buyer's remedies to the return of the chattel and a restitution of his purchase price was held binding, overruling earlier decisions to the contrary). But in Fairbanks, Morse & Co. v. Miller, 80 Okl. 265, 195 P. 1083 (1921), in which the seller delivered a machine which was not in working order, and could not be made to operate by the seller's experts, the court held that a clause restricting the buyer to the replacement of parts was not binding. The court held that the seller delivered an entirely different article than ordered [since the buyer ordered a machine that would operate], and thus there was a breach of condition, rather than of warranty. The court went on to say that a contract cannot be construed to mean that a seller can deliver junk and then fulfill his obligation by replacing parts. Accord: Volz v. Clark, Okl., 303 P.2d 441 (1956). Paragraph (2) of this section, however, is intended to protect the buyer in such circumstances, as well as the general requirement of good faith in all transactions.

(2) This protects the buyer in cases in which the seller agrees to repair, or to replace defective parts, but the repairs or replacements do not correct the defects. The seller is to place the goods in the condition bargained for by the buyer, and when the seller is unable to do so by repair or replacement, the essential purpose of the remedy has failed. This is consistent with the previous Oklahoma decisions cited under (1)

(3) Previous Oklahoma law apparently is partly in accord, for the decisions cited under (1) held that the seller could provide for the sole remedy, which, by implication, excludes consequential damages. The last sentence of this section, however, makes an important change and does not allow the limitation of consequential damages for injury to the person in case of consumer goods.