The exceptions to what you would generally expect — or the real leg work that needs more than barfing up what every mediocre lemon lawyer would know...
Other than contractual disclaimers, the Uniform Commercial Code which provides for implied an implied warranty of merchantability and fitness (for a particular purpose the seller knows and acknowledges a buyer to purchase it for) may not be waived, generally, in a commercial sale.
If the license does not exclude commercial use, and a merchant sells a license with permission, in certain conditions, an implied warranty of merchantability, that is, impliedly warranting that what the software is ordinarily used for, will do that.
As may also be relevant here based on specific facts, express warranties may also not be disclaimed, because “[p]rivity is not required for an action based upon an express warranty” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) since they are a unilateral contract or “"contractual" in the sense that it creates binding, legal obligations on the seller, (see Daugherty v. Am. Honda Motor Co. , 144 Cal.App.4th 824, 830, 51 Cal.Rptr.3d 118), but a warranty does not impose binding obligations on the buyer. (Norcia v. Samsung Telecomms. Am., LLC (9th Cir. 2017) 845 F.3d 1279, 1287-88)
And although “[t]he official Uniform Commercial Code comment in regard to section 2-313 “indicates that in actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement” (Young & Cooper, Inc. v. Vestring (1974) 214 Kan. 311, 521 P.2d 281, 291... .), and therefore, it is clear from the new language of this code section that the concept of reliance has been purposefully abandoned.
Furthermore, “[i]n Weinstat, dentists brought an action for breach of express warranty (among other claims) against the manufacturer of a tooth-cleaning device. 180 Cal.App.4th at 1217–18, 103 Cal.Rptr.3d 614. [t]he warranties at issue were contained in an instruction booklet sealed in the box containing the device. Id. at 1228, 103 Cal.Rptr.3d 614. [t]he manufacturer argued that such statements were not express warranties because the dentists were not aware of them before they bought the product[;] Id. [t]he court rejected that argument, holding that absent proof to the contrary, any affirmation made by the manufacturer before the delivery of the product to a consumer, including statements contained in the product box, constituted an express warranty. (Norcia v. Samsung Telecomms. Am., LLC (9th Cir. 2017) 845 F.3d 1279, 1287-88)
For the point to be made for the instant hypothetical, another important finding need also be stated: Not only statements, per se, including such that formally include a verb may constitute a warranty, mere explicit affirmations implying or allowing for the construction of a statement of fact by a reasonable person entering the bargain will create an express warranty including such — linguistics refer to these statements as “nominal” or “equations sentences”.
In fact, affirmations of such explicit sentences, in joint, may construe express warranties; for example the fact that “the label on [a] can coupled with [a] representation in the [local] newspaper ads that [its] contents contained no bones, constituted an express warranty” Lane v. C.A. Swanson Sons, 130 Cal.App.2d 210, 278 P.2d 723 (Cal. Ct. App. 1955).
Accordingly, in case the software code includes comments on what parts of the code are supposed to do what, those representation, and even nonverbal affirmations, may constitute an express and/or implied warranty if sold — even without a license to do so — since the seller may not evade it statutory duties imposed on them regarding the non-disclaimability of express or implied warranties “taking advantage of his own wrong”.
Conclusively, even if a seller had no right to sell the software, the buyer may enjoy statutory rights, even (i) if he attempted to disclaim all warranties, even if (ii) he personally never made any representations constituting alone or in joint any warranty or warranties, even if (iii) he was not aware of the explicit fractional representations in the software code comments in-joint constituting a warranty, and even if (iv) the seller fails or omits to set forth what remedies will be available under any warranty as constitutes in any of the above manners (since that would also allow the seller to take advantage of his own wrong), and therefore, the seller, if what the code is supposed to do for its ordinary purposes, it fails, he will be imposed a duty to refund the purchase as a matter of implied warranty of merchantability without the buyer having the duty to permit the seller to repair the software goods for the period as set forth in the U.C.C and/or other warranty statutes of the specific state (for e.g. lemon laws).
Implied and express warranties do not exclude each other since “[i]t is equally well settled that the substance of the express warranty does not in any way negate any of the implied warranties. ..." (Gherna v. Ford Motor Co., 246 Cal. App. 2d 639, 652 [55 Cal. Rptr. 94]; Gottsdanker v. Cutter Laboratories, 182 Cal. App. 2d 602, 610 [6 Cal. Rptr. 320, 79 A.L.R.2d 290].) "Where a contract expressly provides a remedy for a breach thereof, the language used in the contract must clearly indicate an intent to make the remedy exclusive" (Nelson v. Spence, 182 Cal. App. 2d 493, 497 [6 Cal. Rptr. 312]; Inner Shoe Tire Co. v. Tondro, 83 Cal. App. 689, 694-695 [257 P. 211]; former Civ. Code, § 1791, now Com. Code, § 2719, subd. (b)).
Although the unlicensed sale may not relieve a seller from being imposed the duties on by the U.C.C. and/or other lemon laws, the fact that that they do not do so as a matter of business activity typically does: A one-off sale by a private person or even a business who does not engage in the business of selling or leasing goods will exclude these duties. (Being aware of faults and falsely stating or concealing them of a freeware piece of software to be sold would create other causes of action by the buyer, for e.g., for fraud, but that is not a matter of what we typically understand under “warranty” or “guaranty” law duties.)
