The first line of defense in limiting liability for product defects, says construction attorney Quenda Behler Story, should be in the contract. For starters, the contract should limit implied warranties to installation only.
Suggested language might read: “The contractor hereby warrants that the products and materials used in this project conform to the contract requirements, are new materials, and meet the standards of the trade. The contractor warrants that he will take all the necessary steps to maintain the manufacturers' warranties on the products and materials. The contractor makes no other implied or express warranties.”
In addition, the contract should specify a reasonable time period on warranties in a “callback clause,” as Story calls it, which ensures that a client will give the contractor a reasonable opportunity to address problems and puts a cap on the time that clients can pursue a contractor.
Such a callback clause might read: “If the work is not in accordance with the requirements of the contract, the contractor shall correct it promptly after receipt of written notice from the owner, unless the problem has been previously corrected and accepted by the owner. All implied warranties are limited to no more than one year after substantial completion of the work.”
The specific language used in the contract should be fine-tuned by an attorney familiar with the relevant state consumer protection laws.
