This article calls for the rethinking of subsection 2-316(3)(c), the course of dealing, course of performance, and trade usage disclaimer provision. The statutory formation of Article 2 requires elsewhere that, if applicable, any or all of these three factors must be considered when interpreting an agreement. Enactment of this second, separate provision should have directed courts to a more equable construction of implied warranty disclaimers of dealing, performance, and usage. This provision should have guided practitioners to a more reliable understanding of the requirements of such disclaimers. Not only did this provision do neither, but it also blurred the distinction between disclaimers by this method and more concrete disclaimer techniques. The many judicial opinions in which the courts have failed or refused to effectuate 2-316(3)(c) as written demonstrate that this provision is superfluous. Consequently, removal of this statutory provision is quite justifiable.
Aremona G. Bennett,
Diminishing Returns: Doing without a Separate Provision for Implied Warranty Disclaimers through Dealing, Performance, and Usage,
41 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol41/iss1/3