dissenting:
As is, I cannot agree with the majority’s result in this matter. I believe that the doctrine of merger is applicable based upon the intent of the parties made evident from a reading of the sales agreement. Whether and to what extent merger occurs is a matter of the parties’ intent as evidenced by the language of the instruments and surrounding circumstances. Timothy Christian Schools v. Village of Western Springs, 285 Ill. App. 3d 949, 953 (1996).
In the instant case, plaintiffs signed a sales agreement providing that they were to accept the premises from defendants "as is.” The sales agreement further provides that defendants warranted the heating and air-conditioning systems to be in "normal working condition on date of possession.” (Emphasis added.) Plaintiffs were allowed to inspect the property within 48 hours of closing, and defendants were to remedy any defects disclosed prior to closing. Specifically, the agreement provides that defendants would remedy the defects as soon as practical and that closing would occur "within 48 hours of the completion of such remedial work.” (Emphasis added.) Based upon the language in the sales agreement, I find it clear that any repairs were to be conducted prior to the time of the closing. I cannot find any collateral undertakings that extend beyond the delivery of the deed. The language of the agreement shows that all repairs were intended to be completed prior to the delivery of the deed, and at that time plaintiffs were to accept the property "as is.” I disagree with the majority that the warranty as to the heating and air-conditioning systems is a collateral undertaking which extends beyond the delivery of the deed. The language in the contract does not support this conclusion. Plaintiffs accepted the property "as is” at the time of closing, and plaintiffs’ failure to inspect the property prior to closing does not extend the warranty of the heating and air-conditioning indefinitely "beyond the date of possession.” Accordingly, I believe that the words of the agreement show an intention between the parties to have the sales agreement and the warranty merge with the deed.
Before ending, I wish to note that just as plaintiffs in this case failed to inspect the house prior to possession, the majority has failed to give meaning to the words "as is.” The majority’s decision has either ignored the words "as is” or given them some new unexplained meaning. I choose not to speculate as to what "as is” now means. All I can say is that following this disposition, it appears that "as is” once was.