Contract Law Basics

A Practical Approach to Contract

Review and Negotiations
Three Parts of The
Presentation
 Practical
 Educational
 Legal
The Practical
Critical Basics to Remember
Communication &
Common Sense
The stuff lawyers make confusing
and corporations hope you don’t
have!
Real Life Signs That Make
You Think “What Did You
Mean to Say” ?
 Seeing Eye Dogs Allowed
 Please Do Not Put Foreign Material in
the Urinal.
 Hands Free Urinal
 AHO – HO
RULE NUMBER ONE

 Read each contract completely, ask

questions and utilize additional
resources if you need answers
Critical Basics to
Remember
 Who is the most commonly utilized
resource that should NEVER be a
resource unless all facts are verified?
Your well trained sales
advisor.
Contract “Sign On” Bonus

 The customer signs on and the vendor

gets the bonus.
 Close the deal based on the needs of
the hospital, not the sales promotion
timetable of the needs of the sales
person’s wallet.
Important Resources

 Corporate Compliance Officer

 Risk Manager
 JCAHO Team Leader
 Subject Expert
 Hospital Attorney
 Outside Review
Contract Review
Considerations
 Include hospital terms and conditions as an
addendum to the vendors contract. It MUST
be stated that hospital terms and conditions
SUPERSCEDE vendor terms and conditions.
 Have an “authorized agent” of the company
sign the hospital purchase order.
Contract Review
Considerations
 BEWARE of the third party
confidentially clause.
 NEVER sign away the right for third
party review!!!!!!!!!!!!!!!!!!!!!!!
Contract Review
Considerations
 Address automatic contract renewal,
sometimes known as “Ever Green”
clause.
 Review state law jurisdiction.
 Consider meditation clauses.
 Use historical data for volume
commitment contracts & project
conservatively.
Create a Negotiation Plan

 To negotiate the sky is the limit, but

understand your essential needs.
 Utilize a subject expert.
 Set your time line, the best deal is the
next one!
 Know when to “close”.
Items to Negotiate
 Extended Payment Terms or Discounted
Quick Pay.
 Late Payment Terms, be very wary of % of
sale!
 Buy out terms.
 Taxes and other fees.
 Freight, fuel charges, hazmat fees, if
applicable.
 Price Increases.
Writing Your Addendum

 Clearly define expectations in writing.

 Craft your language clearly and easy
to understand.
 The courts normally support the
clearest definition of intent.
 GET THE LAST WORD IN!
The 800 pound guerilla
theory
 Corporate attorneys write one sided
agreements, look for balance.
 Who has the bigger legal resources?
 Leverage Resources.
 Bring your own guerilla!
QUESTIONS ?
The Educational

 Suggested Resources and Practical

Advice, Four Books to Read to Help
Win with Contracting & Personal Life
Where to get contract
language, contract review
and template RFP, RFI, IFB.
 Utilize third party experts!
Getting to Yes
How to Negotiate Without Giving
In
What They Didn’t Teach
You at Harvard Business
School
 I don’t know
 I need help
 I’m sorry
The Four Agreements, A
Practical Guide To
Personal Freedom
 Assume nothing.
 Be true to your word.
 Always do your best.
 Don’t take anything personal.
Repacking Your Bags
Continue to grow and refine your
skill set!
The Legal
Stuff Written by a Real Attorney
I. What Is a Contract?

A. Some concepts:
1. A contract is an agreement between parties to perform or not perform
certain acts in the future, the conduct is of a kind that the parties intend to
be legally binding, and the agreement is such that a court may measure
the loss suffered as a result of a breach.

2. A contract is a promissory agreement between two or more persons that

creates, modifies, or destroys a legal relation.

3. A contract is an agreement upon sufficient consideration to do or not to do

a particular thing.

4. In order to be a contract, the promise made must be sufficiently definite

“to justify a promisee in understanding that a commitment has been
made.” Restatement (Second) of Contract § 2.
I. What Is a Contract?

B. Historically, the concept involved promises to be kept

-- pacta sunt servando -- “That every man kept his
given word”.
1. The concept is at least as old as the covenant between Israel and God .

2. The concept of “social contract” is the basis of the Constitution --

government by the mutual consent of the governed. The principles of
justice supporting the basic structure of society (i) are the object of the
original agreement which formed the government, (ii) regulate all
further agreements and (iii) specify the forms of government that can
be established. J. Rawls, A Theory of Justice 11 (1971).

3. Early American jurisprudence regarded contract rights as a natural

product of the immutable principles that preceded human law.
I. What Is a Contract?

C. Requirements for a contract:

1. Promise: A commitment that something will or will not be
done in the future. It must be definite enough to qualify as
a promissory.

2. Exchange: Something of value (“consideration”) is

exchanged between the parties.

3. Enforcement: The parties intend to be bound. Failure to

abide by the promise results in legal sanctions.
I. What Is a Contract?

D. Sometimes “contract” is thought only to be

the writing between the parties. The
writing itself is not the contract. Certain
types of contracts must be evidenced by a
writing, but other contracts that are
evidenced by oral communications or
conduct may be enforceable. A contract is
an “abstract legal relationship between the
parties.” J. E. Murray, Jr., Contracts: Cases
and Materials, 5.
I. What Is a Contract?

E. Importantly, a contract is whatever the court says it is. Case

law has modified, elaborated, refined and expanded general
common law principles and has construed and interpreted
statutory requirements. Legal research may find case law
that will determine the applicability of these basic concepts
to any given situation Promise: A commitment that
something will or will not be done in the future. It must be
definite enough to qualify as a promissory.

1. An “implied contract” or “quasi-contract” is an obligation imposed by law

for the purpose of bringing about justice and equity, without reference to
the parties’ intention. Although it is not a contract, it is treated as a
contract. Restitution and unjust enrichment are two important principles: a
person who has been unjustly enriched at the expense of another is required
to make restitution to the other.
II. Promise: Offer and Acceptance

A. An offer is a promise to perform,

conditional on receiving acceptance.

1. Sometime there is “lack of mutuality”: one party may

have made no promise at all or made a promise that will
permit that party to decline to perform. In this case, the
contract is “illusory” because one party is not under any
obligation at all.
II. Promise: Offer and Acceptance

B. An advertisement is usually not considered

to be an offer. Consider the problems with
mass advertising if each flyer were
considered to be an offer. Advertisements
are seen as invitations for the buyer to
submit an offer.
II. Promise: Offer and Acceptance

C. A price quote could be an offer or may be viewed

as “inviting an offer rather than as making one.”
Restatement on Contracts (Second) § 26,
comment (c). The seller quotes a price or bid
for a product, and the buyer notifies the seller
that it wants the product. This may be seen as
an invitation to make an offer (seller) and the
offer (the buyer). But, if the seller started
supplying the product, and then increased its
price, the buyer may be able to argue that there
was a valid contract, as evidenced by the seller’s
conduct.
II. Promise: Offer and Acceptance

D. Acceptance: may be made verbally, in

writing, or it may be inferred from silence
or conduct.
II. Promise: Offer and Acceptance

E. To be enforceable, the promise must be

definite.
II. Promise: Offer and Acceptance

F. An offer may be revoked before acceptance,

unless it is a firm offer, under the Uniform
Commercial Code, § 8.2-205 [1]:
[1]:

An offer by a merchant to buy or sell goods in a signed writing which

by its terms gives assurance that it will be held open is not
revocable, for lack of consideration, during the time stated or if no
time is stated for a reasonable time, but in no event may such period
of irrevocability exceed three months; but any such term of
assurance on a form supplied by the offeree must be separately
signed by the offeror.
[1] In Virginia, Article 2, the Uniform Commercial Code, codified at Title 8.2 of the Code of Virginia, governs contracts for
the sale of goods. This Article will be referenced throughout this presentation as UCC § 8.2-xxx.
II. Promise: Offer and Acceptance

Example 1: “This offer will remain open for six

months from the date of this letter. Sincerely, X”
(The statute permits a firm offer to be open for
just three months.)

 Example 2: “We can offer you this product at $100.

This is a firm offer. Sincerely, X”(This offer will
remain open for three months.)
 
Example 3: “We offer you this product at $100.
Sincerely, X” (This is not a firm offer).
II. Promise: Offer and Acceptance

G. Acceptance may be evidenced by a party’s

conduct
III. “Mirror Image Rule” and the
“Battle of the Forms”

A. Under the common law “Mirror Image

Rule”, the acceptance has to be exactly the
same as the offer or there was no contract.
A party’s reply changing or adding terms
not in the offer constitutes a counteroffer .
III. “Mirror Image Rule” and the
“Battle of the Forms”

B. This results in the “Battle of the Forms”.

The Mirror Image Rule, in transactions
involving goods between merchants, has
been modified by the Uniform Commercial
Code (“UCC”) § 8.2-207:

§ 8.2-207. Additional terms in acceptance or

confirmation
III. “Mirror Image Rule” and the
“Battle of the Forms”
(1) A definite and seasonable expression of acceptance or a written confirmation which
is sent within a reasonable time operates as an acceptance even though it states
terms additional to or different from those offered or agreed upon , unless
acceptance is expressly made conditional on assent to the additional or different
terms.
 
(2) The additional terms are to be construed as proposals for addition to the contract.
Between merchants such terms become part of the contract unless:
 

(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is given within a
reasonable time after notice of them is received.
 
(3) Conduct by both parties, which recognizes the existence of a contract is sufficient to
establish a contract for sale although the writings of the parties do not otherwise
establish a contract. In such case the terms of the particular contract consist of
those terms on which the writings of the parties agree, together with any
supplementary terms incorporated under any other provisions of this act.
III. “Mirror Image Rule” and the
“Battle of the Forms”
C. Pursuant to UCC § 8.2-104, "Merchant" means a
person who deals in goods of the kind or
otherwise by his occupation holds himself out as
having knowledge or skill peculiar to the practices
or goods involved in the transaction or to whom
such knowledge or skill may be attributed by his
employment of an agent or broker or other
intermediary who by his occupation holds himself
out as having such knowledge or skill. “Between
merchants” means in any transaction with respect
to which both parties are chargeable with the
knowledge or skill of merchants.
III. “Mirror Image Rule” and the
“Battle of the Forms”
D. UCC § 8.2-207 was designed to regulate the
conduct whereby each party sent back preprinted
forms with different terms. Now, the mere
presence of additional terms in one of the parties’
forms will not prevent the formation of the
contract.
1. If no contract is recognized, under 2-207 (1), then the transaction
is nullified.

2. If performance by both parties evidences the intent to be bound by

a contract, then under 2-207(3), the conduct is sufficient to
establish a contract.
III. “Mirror Image Rule” and the
“Battle of the Forms”
3. If there is a contract, the terms are those upon which the parties agree
and any additional ones supplemented by the UCC.

4. Example: One party’s “acceptance” had arbitration terms. The parties

did not agree to arbitration inasmuch as the forms did not match. But
both parties performed. There was a breach. Is arbitration required?
Since there was no agreement as to the arbitration terms, the question
is whether the UCC allows the parties to supplement that term under
some other UCC provision. Some courts have held that the only
supplemental terms that are allowed are those that are the “gap filler”
provisions in Article 2, such as
place of delivery (UCC § 8.2-308)
time for shipment (UCC § 8.2-309)
time payment is due (UCC §8.2-310)
 
Other courts may allow a reasonable price term to be substituted, under UCC §
8.2 2-305 if there was no agreement as to price.
III. “Mirror Image Rule” and the
“Battle of the Forms”
E. The italics in the statute above clarifies that when
an acceptance (absent conditional language in the
acceptance) adds additional terms, those
additional terms become part of the contract
unless the terms listed in 2 (a)-(c) apply. Under
section 2, the additional terms proposed by the
buyer are deemed to be proposals for new terms
to the contract.
III. “Mirror Image Rule” and the
“Battle of the Forms”
F. If the acceptance of the additional terms is required
for a contract to be formed, then a party can prevent
the other’s terms from prevailing, but there is no
contract. Look for the following wording to see
whether additional terms constitute a counteroffer as
contemplated by section (1):

Examples: “Acceptance of this offer must be made on the exact terms set
forth herein. If additional terms are proposed, these terms will
constitute a counteroffer, and no contract will be formed without
offeror’s assent to the counteroffer.”
 
“This response supersedes any conflicting written or verbal terms of
purchase.”
III. “Mirror Image Rule” and the
“Battle of the Forms”

G. If there are differences in the terms, and the

parties have performed, look to subsection (3) of
the statute. The contract consists of the terms
that match and any that may be supplemented by
the UCC default provisions.

Example: UCC § 8.2-305 provides that if there is no price term, the

contract would be for a reasonable price for the product.
III. “Mirror Image Rule” and the
“Battle of the Forms”

H. Section 8.2-207 is inadequately drafted. Frequently, there

are two alternatives, but the statute only addresses one.
 
1. An acceptance containing additional terms may be a valid acceptance if it
is “definite”. If the terms are substantially different (price, description of
goods, quantity) is it definite?
 
2. What if the acceptance states that the agreement is subject to the
conditions printed on the reverse side of “this form”? Is that a conditional
acceptance?
 
3. Section (3) controls a contract established by conduct. This could be a
problem for the offeror because the UCC may establish terms more favorable
to the offeree. The UCC warranty terms, for example, are probably more
favorable to the buyer.
III. “Mirror Image Rule” and the
“Battle of the Forms”
4. What is an “additional” term? Is it the same as a “different”
term?
a. Not necessarily.

b. The courts are split, but the better view is that

documentation containing significantly different material terms is not
an acceptance, but beware. Each party should ensure that the
party’s intentions are clear. Consider the following language:

“Acceptance. Acceptance of this offer must be made on its

exact terms and if additional or different terms are
proposed by Seller, its response will constitute a counteroffer, and
no contract will come into existence without offeror’s assent to
the counteroffer.”
III. “Mirror Image Rule” and the
“Battle of the Forms”

I. Make sure that the material terms match.

Generally, price, quantity, date of delivery,
payment terms are material, but each contract is
fact-specific. If it’s important, make sure the term
is expressly written in the final agreement, or
restated as a condition to the contract in the
acceptance.
III. “Mirror Image Rule” and the
“Battle of the Forms”

J. As a buyer, if you have a PO or a RFP that has

terms that are essential and material, make the PO
or the RFP part of the final contract. You can do
this by stating:

“The Purchase Order (or RFP) of (date) is incorporated

herein by reference and is made a part of this
Agreement as if set forth and restated herein.”
IV. Intention to be Bound

A. Many parties fail to adequately express their

intention to enter into a contract and to be so
bound. Sometimes a party does not intend that its
offer be accepted without further negotiation. If
so, the offeror should make this clear by indicating
that the “offer” is only an invitation to negotiate.
IV. Intention to be Bound

B. Frequently, the parties carelessly draft a “letter of

intent” that turns out to be a “letter agreement”--
even though the parties fully intended that further
drafting/negotiation follow. The following type of
language should be included in a letter of intent:
“In order to be enforceable, the parties must enter into a written
agreement signed by both parties.”
 
“Among the conditions of closing the contemplated transaction,
is the execution of a definitive agreement containing appropriate
representations and warranties and requisite corporate
approvals.”
IV. Intention to be Bound

C. Under the common law parties who “agree to agree” at a

later date did not have a contract. Under the UCC,
however, parties may contract for the sale of goods by
leaving terms open, according to UCC § 8.2-204(3):
§ 8.2-204. Formation in general.
 
1) A contract for sale of goods may be made in any manner sufficient to
show agreement, including conduct by both parties which recognizes the
existence of such a contract.

(2) An agreement sufficient to constitute a contract for sale may be found

even though the moment of its making is undetermined.
 

(3) Even though one or more terms are left open a contract for sale does
not fail for indefiniteness if the parties have intended to make a contract
and there is a reasonably certain basis for giving an appropriate remedy.
V. Consideration

A. A contract requires a bargain in which there is a

manifestation of mutual assent to the exchange
and a consideration.
V. Consideration

B. Consideration is what a party receives in exchange

for his consideration or his promise.
 
1. It may be an act, a forbearance, or the creation, modification
or destruction of a legal relation (e.g. a separation
agreement between spouses).
 

a. Mutual promises can be consideration. Look at each

contract to determine consideration on both sides.
 

b. It’s okay if the number of exchanges are not “equal”

or the consideration is not equivalent.
 

c But the consideration has to be adequate.

V. Consideration

 Without consideration, a promise to

perform is a “gift promise” and is not
enforceable.
Example: Although I promise to give you half my house,
without consideration or an exchange to me on your part,
this is an unenforceable gift promise.
VI. Parol Evidence

A. It is important that the parties are able to rely on

the expression of their intent as stated in the
written contract or, in the case of an oral
contract, in their verbal expression.
 
1. It is wrong, however, to have a partially written and a
partially verbal agreement if the contract is intended, or
appears to be intended, to be entirely in writing.
VI. Parol Evidence

B. The “Parol Evidence Rule”: When the parties to a contract

embody their agreement in a writing, and intend that the writing
is the final expression of their agreement, the terms of the writing
may not be contradicted by evidence of a prior agreement.
 

1. Example: The parties had an agreement. Subsequently, there was another

agreement. A party argues that the second agreement was intended to be the
final and complete expression of the parties’ intention, replacing the first
agreement. A court would decide the question of fact: Did the parties intend the
second agreement to be the final, complete (“integrated”) agreement, or did they
intend that the terms of both agreements be operative?

a. Extrinsic (outside the 4-corners of the document) or parol (oral) evidence can be used to
determine the meaning of their manifestations of intent, or the interpretation of their outward
manifestations.

b. Extrinsic or parol evidence cannot be offered to vary, add to, or contradict the terms of a
written agreement.
VI. Parol Evidence

C. The parol evidence rule applies to prior or

contemporaneous agreements and does not have
any application to subsequent modifications. The
parties are free to modify contracts.
 

1. UCC § 2-209 (1) allows good faith modifications to be effective

without additional consideration.

2. Frequently, the parties have agreed that oral modifications are

not permitted. An example of this “private statute of frauds” is:
“All changes or modifications of this Agreement shall be in
writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.”
VII. Merger Clauses

A. Merger clauses (a/k/a “integration clauses” or “zipper

clauses”) are contract clauses that read substantially as
follows:
1. “This Agreement contains the whole agreement between the Seller and
Buyer and there are no other terms, obligations, covenants, representations,
statements or conditions, oral or otherwise of any kind whatsoever”; or
 
2. “This Agreement sets forth the entire understanding between the parties
hereto and supersedes all other prior agreements between the parties
with respect to the subject matter hereof. Each party acknowledges that
no representations, inducements, promises or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of any
party, that are not embodied in this Agreement, and that no other agreement
or promise not contained in this Agreement shall be valid or binding
as between Company and Client.”
VII. Merger Clauses

B. Merger clauses are usually interpreted to

determine that the agreement is completely
integrated. There is, however, minority opinion
refusing to give such clauses exclusionary effect, if
the clause is not negotiated and on a preprinted
form.
VIII. Contract Interpretation

A. Some principles of contract construction

1. Purpose of the parties. Make it clear what the purpose of the
contract is, and the purpose the parties intended to effect.
 

2. The contract should be construed as a whole. Courts favor

interpretations that make sense when the contract is viewed as a
whole.
 

3. The contract speaks for itself”. This traditional view considers

that the contract says what it means, not what the parties say it
means. A more modern view is:
 

4. The contract should be viewed in context.” The contract is part

of the entire situation, the entire context or environment, all of
which can be used to interpret the contract.
VIII. Contract Interpretation

5. Expressio Unius Est Exclusio Alterius. (The inclusion of one is

the exclusion of all others). If a clause in a contract lists specific
items, other items not included will probably be excluded.
  a. Use of the wording “including but not limited to” makes it clear that any list of
particulars/specifics is not inclusive.  

6. The contract is construed against the party drafting it. The drafter
is disadvantaged when courts consider the meaning of contractual
terms, interpreting the terms in favor of the non-drafting party .
 

7. The reasonable, lawful meaning will be chosen over the

unreasonable, farfetched or unlawful meaning. The interpretation
supporting public policy arguments will be favored.
 

8. Ejusdem Generis. (“Of the same kind.”) If general contract

language is followed by specific items, the general language will be
limited in kind or classification to the enumerated specific terms.
Specific controls the general.
VIII. Contract Interpretation

9. A word or phrase used twice will be interpreted the same

way for each usage.
 

10. Handwritten terms are favored over typed; typed are favored
over printed; separately negotiated terms will be favored over
preprinted forms.
 

11. The parties are presumed to have read the contract, all of it,
even the small print on the reverse of the forms.
 

12. Conjunctive and Disjunctive. “And” can be used in a

“several” sense (Dogs and Cats, either separately or together) or
in a “joint” sense (Dogs and Cats, together only). “Or” may be
inclusive (Dogs or Cats, or both), but sometimes it is used in an
exclusive sense. (Dogs or Cats, but not both together). Be
aware of the ambiguity and rewrite.
VIII. Contract Interpretation

B. If you want to: Use this language:

Create a right “entitled to”
Create a requirement or duty “shall”
Create a discretionary choice or to
indicate a exercise of a right “may”
Create a condition precedent “must”
IX. Oral or Written?

An oral contract or a contract evidenced by conduct may be perfectly

enforceable if the other essentials for contract formation exist. Under
English law, law, however, certain exceptions were created by the
State of Frauds, in 1677 and to a large extent apply today. The
following contracts, among others, should be evidenced by a writing:
Promise to marry (e.g. prenuptial agreements)
Contract which cannot be performed within a year
Contracts for the sale of land, or interest in land
Contracts or promises made by an executor
Sale of goods worth over $500 (UCC § 8.2-201):

Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or
more is not enforceable by way of action or defense unless there is some writing sufficient to
indicate that a contract for sale has been made between the parties and signed by the party
against whom enforcement is sought or by his authorized agent or broker
X. Breach

Disputes arising out of contracts for the sale of goods can

be very complex. Proper analysis requires detailed
knowledge of the UCC, Article 2. Here are some of the
UCC statutes implicated by disputes (failure to perform;
supply of defective goods) in the sale of goods. Be
careful and seek legal counsel when disputes arise.

Rejection of nonconforming goods: UCC § 8.2-601

Anticipatory Repudiation: UCC §8.2-610
Retraction of Anticipatory Repudication: UCC § 8.2-611
Right to Cure: UCC § 8.2-508
Liquidated Damages: UCC § 8.2-718 (1)
Buyer’s Remedies: UCC § 8.2-711
Right to “cover”: UCC § 8.2-712
Seller’s Remedies: UCC § 8.2-703
XI. Indemnification

A. Indemnify means “to save harmless; to secure

against loss or damage; to give security for the
reimbursement of a person in case of any
anticipated loss falling upon him.” An
indemnification clause in a contract is like a
private insurance policy: one party (the
indemnitor) promises to pay the damages, and
sometimes, the legal expenses, of the other party
(the indemnitee), arising out of the contractual
relationship or transaction. The indemnification
clause usually covers claims by third-parties.
XI. Indemnification

B. Under what circumstance does the indemnitor have to

pay? It depends on the language in the indemnification
clause:
1. The indemnitor may be obligated to pay if the indemnitee is
simply sued as a result of the transaction.
2. Sometimes it’s an absolute requirement to pay “all claims”,
period:
“The customer agrees to defend, indemnify and hold harmless XYZ Container
Corporation from and against any and all claims for loss or damage to property, or injury to
or death of person or persons resulting from or arising in any manner out of customer’s
use, operation or possession of the equipment furnished under the Agreement.”
 
Sometimes the indemnification provision is triggered if negligence is claimed;
sometimes, the indemnification is triggered if the lawsuit is premised on the
indemnitor’s intentional or reckless conduct. Or, depending on the language, the
obligation is triggered if the legal action is successful.
XI. Indemnification

3. If the indemnification provision has the requirement “to

defend”, it usually means the indemnitor has to pay the legal
costs of the other party, but frequently may be able to chose
the indemnitee’s legal counsel.
 

4. Frequently, the indemnification clause is written so it is

triggered only if the claims have been successful.
XII. Warranty

A. The UCC has transformed the law of warranties with

respect to the sale of goods. UCC § 8.2-313, -314, -315.
B. The express warranty is a warranty crated by a promise
or affirmation of fact by the seller in relation to some
quality or feature of the goods which are the subject
matter of the sale of goods. UCC § 8.2-313(1)(a)
1. Trade usage, course of dealing or course of performance may affecct
the interpreation.
 

2. Express warranties may be created by model or sample; oral or written

representations of fact; plans or blueprints; technical specifications;
reference to official standards; products supplied in the past.
 

3. Mere expression of opinion (“puffing”) is not a warranty.

XII. Warranty

C. The implied warranty of merchantability” is the basic

quality of goods that the buyer is entitled to receive --
goods fit for the ordinary purposes of such goods. The
buyer may not be entitled to perfect goods, but those
which a reasonable buyer would normally expect to
receive. UCC §8.2-314 (2)(c)

D. The implied warranty of fitness for a particular purpose”

applies when the seller has reason to know of a
particular purpose which the buyer expects the goods to
fulfill. The seller may also know that the buyer is relying
on his particular judgment and expertise and skill in
supplying these goods.
XII. Warranty

E. Disclaimers
1. Express warranties
a. “Seller warrants that the goods are as described in this
agreement, but no other warranty is made.’
  b. “There are no express warranties.”

  2. Specific or general disclaimer to disclaim implied

warranties
  a. UCC §§ 8.2-316 (2) or (3)
  b. “As Is”
  c. “Conspicuousness” requirement of UCC