by Marty Helly
For the past several years, there has been a push by a few of us in the industry to get manufacturers and installers to work together and stand behind the total performance of the building envelope and not just their piece of it. The building Owner wants a wall system that works. It needs to keep the weather out, the energy in, protect the inhabitants and keep looking good. When it fails to do this, he doesn’t want to have to figure out which of the 30 different products wasn’t up to par at the time of manufacture or which piece wasn’t installed properly. He just needs it fixed quickly, without major expense and before damages to operations, personnel and everything inside the building start piling up.
This is where the System Performance Warranty comes in. Rather than the manufacturer’s and installers standard disclaimer documents with exclusions and short time limits, the goal is to have the major suppliers and installers buy into warranty of the outcome for the Owner for an extended time period. With that acceptance of responsibility, the team is more driven to work together to ensure the quality of the materials and the installation for a successful project.
Most specifications for building envelopes are written in multiple sections over multiple divisions. To protect the Owner against future problems, you will often see language requiring warranties. Unfortunately this often falls short of providing the intended protection by requiring submission of a manufacturer’s standard product warranty.
Let’s look at the initial basis of responsibility for a quick primer. The Uniform Commercial Code (UCC) provides overall guidance for commerce and transactions. It includes provisions for
Implied Warranty: fitness for a particular purpose
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to furnish suitable goods.
If I sell you something for you to use, I’m generally responsible for that product being suitable for what I told you it would do. If it doesn’t, then I need to fix that for you. The UCC also includes provisions that indicates this implied warranty can be negated as long as the terms are in writing and conspicuous. Written warranties perform the process of documenting these exclusions.
If you delve into the typical standard warranty, you discover that rather than protecting the Owner, the document has prepared by attorneys working for the manufacturer to limit their potential liability. Here are samples of typical warranty provisions, names redacted for obvious reasons:
We, the manufacturer, warrant only that this product is free of defects, since many factors which affect the results obtained from this product are all beyond our control.
Disclaimer of warranties and limitation of liability: this limited warranty is in lieu of any other warranties, express or implied, including but not limited to any implied warranty of merchantability or fitness for a particular purpose.
No one shall have any liability of any kind beyond product replacement.
This limited warranty and liability disclaimer provides the purchaser’s exclusive remedy for anything relating to the product.
As you can see these written provisions are intended to limit the providers responsibility rather than provide a warranty to the Owner that the building will perform. When a specification calls for a MANUFACTURER’S STANDARD WARRANTY rather than stating warranty terms, it is incorporating these provisions by reference.
I real world terms, here is how these provisions could be applied. A manufacturer provides a waterproofing membrane. The wall leaks requiring removal and replacement of large areas of the wall. During removals, its discovered that the leak was caused by 10 feet of the membrane being defective. The sole responsibility of the manufacturer under the standard warranty is to furnish a roll of 10 feet of material. It is not responsible for the damage or the repair.
The Owner had better generic protection of fitness for purpose under the Uniform Commercial Code before requiring the warranty and documentation.
In the next article we’ll go into how to write warranty provisions that actually protect the Owner.