a:\newslw.96 [4]Alan Lee MitchellStephen De'ak201997-04-30T22:33:00Z2006-07-01T22:24:00Z2006-07-01T22:24:00Z1111163365214743311.8026 FURRER & SCOTT LLCConsider . . .VOL. 6, ISSUE 3 July, 1997Law OfficesFURRER & SCOTT LLC9185 SW BURNHAM ST. POST OFFICE BOX 23414TIGARD, OR 97223 TIGARD, OR 97281(503) 620-4250 -- (800) 334-8986 -- FAX: (503) 620-4315WARNING:The August 1, 1997 deadline for compliance with the Construction Contractors Board’s new rule regarding use of registration numbers is fast approaching.The new rule, OAR 812-003-0000(8)(d) provides that a contractor’s registration number must be shown on all business cards, business letterhead, business signs on motor vehicles and business signs at construction sites.The rule was already effective for all contractors who registered on or after August 1, 1996 and for all existing contractors when they purchased new versions of the above materials.DO NOT MISS THIS DEADLINE.There is an exception to this rule under subsection 8(e). This exception provides that the above rule does not apply to a company whose primary business is other than construction and which has been assigned a SIC code other than Major Groups 15, 16 and 17 by the State Department of Employment.BUILDING YOUR DREAMEnclosed with this month’s newsletter is a copy of a pamphlet entitled Building Your Dream: How To Do It Right! This pamphlet discusses some common issues in residential construction. It is a joint production of Washington Mutual Bank, Stewart Title of Oregon, Inc., the Construction Law Section of the Oregon State Bar and the Oregon Construction Contractors Board.If you would like additional copies, please contact our office.WARRANTY DISCLAIMERSAs a business person, you may feel that you have taken every precaution in regards to protecting yourself against complaints. If you deal in goods, you may be familiar with the Uniform Commercial Code ("UCC") and the disclaimers of warranties that it provides. However, you may not be familiar with Oregon's Consumer Warranty Act ("CWA").The CWA is not part of the UCC; it is unique to Oregon. For the purposes of warranty disclaimers, the CWA is important because disclaimers under it are different than the disclaimers under the UCC.Most importantly, the CWA requires that its specific disclaimer language be used in any contract regarding sales of consumer goods. Consumer goods are defined as new, durable products or goods that are purchased primarily for personal family or household purposes.The CWA provides certain warranties to buyers of consumer goods. These warranties can run from the manufacturer, the wholesaler, the distributor, or the retailer. The Act provides for both express and implied warranties.For manufacturers of consumer goods, this Act has some powerful consequences. First, there does not have to be any direct connection between the manufacturer and the consumer; any buyer can sue the manufacturer, if the elements of this Act are met. In this regard, the federal Magnuson-Moss Act may also apply, extending the scope of who may sue a manufacturer.Second, if the manufacturer makes any express warranties regarding the service, repair or replacement of the consumer good, then the manufacturer must maintain a service or repair facility within the state. For distributors and retailers, the same requirement for service or repair facilities applies if an express warranty is provided.The CWA also provides that implied warranties may be made by any business involved in the chain of distribution of consumer goods. Like express warranties, implied warranties can support a claim for damages against a business. However, the tricky aspect of implied warranties is that a business may not even realize that they apply to a transaction. Implied warranties are provided by the law, not by the business.In order to protect themselves, businesses need to be aware when they are selling goods that could be subject to this Act. If your business makes express warranties, be sure that there are repair or service facilities within the state that will service the good.Virtually all warranties are subject to being disclaimed. However, as noted above, the disclaimer language under the CWA is different than the disclaimer language under the UCC.Under the CWA, disclaimers must be in a conspicuous writing that is attached to the consumer good. The consumer must state all of the following: (1) the good is sold "as is" or "with all faults"; (2) the entire risk regarding quality and performance is with the buyer; and (3) if the good proves defective, the buyer assumes the entire cost of all service and/or repair.While no disclaimer can eliminate the possibility of any liability, an example of a serviceable disclaimer that addresses both the CWA and the UCC follows:NO WARRANTIES. [COMPANY] DISCLAIMS ANY AND ALL WARRANTIES. THERE ARE NO EXPRESS WARRANTIES AND THERE ARE NO IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANT-ABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THERE ARE NO OTHER IMPLIED OR EXPRESS WARRANTIES OF ANY NATURE WHATSOEVER. ANY AND ALL GOODS ARE PROVIDED ON AN "AS IS" BASIS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF GOODS IS WITH THE BUYER. IF THE GOODS PROVE DEFECTIVE, BUYER ASSUMES THE ENTIRE COST OF ALL SERVICING AND REPAIR. Note, however, that the federal Magnuson-Moss Act may invalidate or limit any disclaimer of implied warranties for the term of any express warranty that is subject to that Act.Finally, for their non-consumer transactions, businesses may want to add another level of protection to their contracts by including a statement as follows:Any and all goods or labor shall be for use in Buyer's business and commercial use only and not for Buyer's consumer, personal or household use.CHANGE IN FEDERAL JURISDICTION LIMITSHave you ever been involved in a lawsuit in federal court? While most of the lawsuits prepared by this office involve the state courts system, there are times when federal court is the appropriate or necessary venue.Recently, Congress changed some of the rules by which parties can access the federal courts. Specifically, Congress raised the monetary jurisdictional limits for federal cases based upon “diversity” jurisdiction. “Diversity” jurisdiction means that the parties on opposite sides of a lawsuit are from different states and, thus, are able to access the federal court system.For many people or businesses, “diversity” jurisdiction may be the most common way in which they find themselves in federal court.Formerly, “diversity” jurisdiction could only apply if the amount in controversy was over $50,000.00. Under the new bill, which took effect in January of 1997, the new minimum amount is $75,000.00.FIRM NEWS:MICHAEL J. SCOTT and FREDERICK C. RUBY authored materials on liens and bonds for use as part of a two-day construction law seminar in Portland held on April 24 and 25. THOMAS J. MURPHY made the presentation. Fred has now joined Wilshire Financial Services in Portland. We wish him well.This newsletter is published quarterly by the law firm of Furrer & Scott LLC for the benefit of its clients and friends and is intended to inform them about legal matters of current interest. This information is not intended to be, and should not be considered to be, legal advice. No actions should be undertaken in reliance hereon without professional legal counsel.Alan L. Mitchell, Editor