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As is, where is
Last updated: 12-Nov-2014

Per Leggatt J in Hirtenstein & Anor v Hill Dickinson LLP [2014] EWHC 2711 (Comm) at para 51, 55-56:

51. The first is that the Yacht was offered for sale to Mr Hirtenstein, and he agreed in principle to buy it, "as is, where is". I would regard that phrase as self-explanatory. It clearly signified that the buyer would acquire the Yacht in whatever condition the boat was at the time of purchase with no right to complain subsequently if the boat should turn out to have any defect.

55. In Dalmare SPA v Union Maritime Ltd [2012] EWHC 3537 (Comm), [2013] 1 Lloyd’s Rep 509, paras 77-84, a case decided since the sale of the Yacht took place, Flaux J expressed a provisional view (obiter) that the words "as is" when included in a contract for the sale of goods are not by themselves sufficient to exclude the conditions as to satisfactory quality and fitness for purpose implied by the Sale of Goods Act, and only exclude the right to reject the goods for breach of those conditions. In a contract between commercial parties such an interpretation would seem to me to be generous to the buyer. Drawing such a distinction between the right to reject and the right to damages and treating the words "as is" as excluding the former but not the latter seems to me most unlikely to reflect the expectations of ordinary business people or to be an interpretation that would occur to anyone other than an ingenious lawyer.

56. In the present case, however, the question is not one of interpretation of the sale contract but simply one of the background understanding of the parties against which the contractual documentation was negotiated. I have no doubt that Mr Hirtenstein, Mr Candy, their solicitors, and the broker, Mr Cecil-Wright, all understood that buying the Yacht "as is, where is" meant that Mr Hirtenstein would get the Yacht in its existing condition, good or bad, with no subsequent recourse against the seller for any fault which the Yacht might turn out to have.


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