The Used Truck and the 'As Is' Clause: Drafting an Objective Memorandum
You are a law clerk at a three-attorney firm in Grand Junction. Your supervising attorney, Dana Okonkwo, represents Cole Barstow, who bought a 2017 pickup from Mesa Auto Sales for $24,500 on March 3. The transmission failed at 4,100 miles. The sales contract contains a bold, all-caps clause, 'AS IS - NO WARRANTY,' which Cole initialed, but the salesperson orally promised 'a full 30-day powertrain warranty' and gave Cole a handwritten note saying so. The file includes Cole's intake statement, the contract, the handwritten note, and Dana's notes from a call with the dealer's manager, who said the truck 'was sold wholesale because of a known torque-converter issue.' Dana asks you to draft an objective memorandum predicting whether Cole can recover. She wants the discussion organized around claim elements, not around the facts, and she wants you to apply UCC Articles 1 and 2 as adopted in Colorado and to flag what discovery is needed.
1. Draft the discussion section for the implied warranty of merchantability claim, including the effect of the as-is clause.
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Element 1: a sale by a merchant of goods of that kind. Mesa Auto Sales sells used trucks; it is a merchant with respect to motor vehicles. Article 2 applies to the transaction.
Element 2: the goods were not merchantable. Merchantable goods must be fit for the ordinary purposes for which such goods are used. A transmission failure at 4,100 miles after purchase is strong circumstantial evidence of unfitness, and the manager's admission of a known torque-converter issue supplies direct evidence that the truck was not fit for ordinary driving. The dealer's knowledge also matters for the unconscionability analysis.
The as-is clause. A written disclaimer of merchantability must mention merchantability and be conspicuous. The all-caps, bold clause is conspicuous on its face, and the phrase 'as is' can disclaim all implied warranties where the buyer inspected or refused to inspect and the circumstances indicate the buyer assumed the risk. But two questions remain: whether the clause was separately bargained for or buried in a form, and whether it is unconscionable given the dealer's knowledge of the defect. A court may decline to enforce a disclaimer that shields a known defect.
Prediction. The clause probably defeats the implied warranty claim standing alone, but not the express warranty claim, and not if the clause is unconscionable. The memo should present this as a close question, not a certainty.
2. Analyze the express warranty claim and the parol evidence issue raised by the handwritten note.
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Express warranty. Any affirmation of fact or promise that relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform. The salesperson's oral promise of a 30-day powertrain warranty and the handwritten note both qualify. No formal words such as 'warrant' are required, and the seller's intent is irrelevant; the question is whether the statement was part of the basis of the bargain.
Parol evidence. A written contract intended as a final expression may not be contradicted by prior or contemporaneous oral agreements, but consistent additional terms are admissible unless the writing was intended as a complete and exclusive statement. A 30-day powertrain warranty is consistent with the sale and does not contradict the price or the subject matter. The handwritten note, if signed and delivered at or after signing, may also operate as a modification, which requires no consideration under Article 2.
Interaction with the as-is clause. Where an express warranty and a disclaimer are inconsistent, the express warranty prevails as to that warranty. The note is therefore the strongest path: it is written, specific, and directly contradicts the notion that Cole took the truck with no warranty at all.
Discovery needed. Who wrote the note, when it was delivered, whether it is signed, and whether the salesperson had authority to give it.
3. Explain how the memo should be structured differently from a trial brief and identify the missing facts that discovery should target.
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Structure. An objective memo predicts and evaluates; it does not advocate. Use Question Presented, Brief Answer, Statement of Facts, Discussion (rule, application, counterarguments, conclusion), and Recommendations. A trial brief, by contrast, is persuasive: it uses point headings, argues one side, and cites only favorable authority. In an MPT, the candidate must work within the file and library, apply the supplied or standard rules, and avoid importing outside facts.
Missing facts that matter. Whether the as-is clause was separately negotiated or buried in a form; whether Cole inspected the truck or had a mechanic inspect it; the truck's mileage at sale and its maintenance history; the exact words of the oral promise; whether the note is signed, dated, and delivered before or after the contract; whether the dealer advertised the truck as inspected; and the repair estimate, which drives damages.
Additional claim elements to preserve. Notice of breach to the seller, revocation of acceptance, incidental and consequential damages, and the four-year statute of limitations. The memo should also flag the dealer's knowledge of the torque-converter issue as support for both the breach and an unconscionability argument, and should recommend a demand letter before suit.