Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Warranty Disclaimers in US Lease Transactions
Almost every equipment lessor attempts to disclaim any warranties for the leased equipment . A simple version of such a disclaimer might read:
LESSOR MAKES NO WARRANTY EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Types of Warranties. There are two major categories of warranties: (1) express warranties and (2) implied warranties.
Express Warranties. An affirmation of fact or promise can be an express warranty that the goods shall conform to that affirmation or promise; a description of the goods can be an express warranty that the goods shall conform to that description; a sample or model of the goods can be an express warranty that the goods shall conform to the sample or model. A party can manage its express warranties by watching what it says. Implied warranties create more problems because, by definition, they can exist if nothing is said at all.
Implied Warranties. There are four major types of implied warranties relevant to leases:
1. Implied warranty of quiet possession (also known as the warranty against interference);
2. Implied warranty of non-infringement;
3. Implied warranty of merchantability: and
4. Implied warranty of fitness for a particular purpose.
1. Implied warranty of quiet possession (also known as the warranty against interference). The Uniform Commercial Code ("UCC") implies into every lease transaction a warranty that noone has an interest or a claim which will interfere with lessee's use and possession of the equipment for the lease term. Of course, this is preciously what the lessee is paying rent for--the right to use the equipment. It is the lessee's "benefit of the bargain."
2. Implied warranty of non-infringement. Infringement refers to an appropriation or invasion of someone else's intellectual property rights. This warranty only applies if the lessor is a "merchant regularly dealing in goods of the kind" and does not apply at all in the case of an Article 2A finance lease. When is a lessor "a merchant regularly dealing in goods of the kind"?
A merchant is defined in the UCC as 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. UCC 2-104. A lessor who specializing in computer leasing may be a person who "regularly" deals in "goods of the kind"--i.e., computers. A general purpose equipment lessor may not; even though they may lease computers from time to time, the general purpose lessor may not do so often enough to be "regularly" doing so. It is far from clear how many leases of a certain type of equipment it would take to cross the threshold. That threshold will mostly likely be developed by the case law over the years.
3. Implied warranty of merchantability. The UCC also implies a warranty of merchantability in all leases except Article 2A finance leases if the lessor is a "merchant with respect to goods of that kind." What is merchantability?
To be merchantable, goods must be at least such as:
a) pass without objection in the trade under the description in the lease agreement;
b) in the case of fungible goods, are of fair average quality within the description:
c) are fit for the ordinary purposes for which goods of that type are used;
d) run, within the variation permitted by the lease agreement, of even kind, quality and quantity within each unit and among all units involved;
e) are adequately contained, packaged, and labeled as the lease agreement may require; and
f) conform to any promises or affirmation of fact made on the container or label.
UCC 2A-212{2}. Merchantability issues typically arise in leasing in the case of large numbers of the same type of equipment, such as a number of personal computers or a fleet of delivery vans or a group of office furniture items. The central idea is that while one or two defects of a particular item may possibly be acceptable, a defect rate that is too high will render the lot unmerchantable so as to breach this implied warranty.
4. Implied warranty of fitness for a particular purpose. Except in the case of a finance lease, if a lessor at the time the lease contract is made has reason to know of any particular purpose for which the goods are required and that the lessee is relying on the lessor's skill or judgment to select or furnish suitable goods, there is in the lease contract an implied warranty that the goods will be fit for that purpose. UCC 2A-213.
This is the most problematic implied warranty because of its focus on what the lessor knew at what time and what the lessee relied upon. Factual and evidentiary issues can be complex, particularly in computer leases where a "whole system" or other turnkey type combination of hardware and software is leased.
Exclusion and Modification of Warranties. Although warranties may be excluded or modified, not every attempt to disclaim may be successful. For example, it may not be possible to disclaim an express warranty if one has actually been made. Implied warranties can be disclaimed in a lease so long as the disclaimers are (1) in writing and (2) conspicuous and (3) to disclaim the implied warranty of merchantability, must specifically mention "merchantability." This is also true to disclaim the implied warranty of fitness for a particular purpose. Although the UCC as written allows disclaimers by such language as "with all faults" or "as is", few lessors would rely on such thin language.
It is also noteworthy that with respect to a well-developed delivery and acceptance certificate practice, if the lessee has "before entering into the lease agreement" examined the equipment as fully as desired or has refused to do so, there is no implied warranty with regard to any defect that such inspection should have found. UCC 214(3)(b).
The implied warranties against interference and infringement can also be disclaimed if the disclaimers are in writing, conspicuous and specific.
Course of dealing and usage of trade. Warranties can also be either created or destroyed by "course of dealing and usage of trade"--i.e., the method and manner of how the parties have actually dealt with each other over time, regardless of what the contracts have provided.
Article by Steven Gilyeart.
Updated 13 May 1998