(concurring in part and dissenting in part).
The common law misrepresentation issue is a close one given the Supreme Judicial. Court’s refusal to find liability in Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674 (1983) (no misleading partial disclosure where seller gave buyer percolation test showing too much water on land while failing to disclose seasonal stream). But I agree with the panel that enough is alleged to avoid dismissal of the complaint.
I do not agree, however, with the panel’s suggestion that Mass.Gen.Laws ch. 93A would allow a finding of liability for pure nondisclosure in a case like this one, involving sophisticated business parties and an “as is” contract. The question is difficult, and certification of this question to the Massachusetts Supreme Judicial Court might at some point be appropriate. See S.J.C. Rule 1:03; Clay v. Sun Insurance, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960). But, if forced to decide the chapter 93A question, I must disagree with the panel majority; the following factors persuade me that the panel is wrong.
First, the panel’s interpretation of chapter 93A virtually reads the “as is” contract out of ’ Massachusetts law. If a seller knows he is liable for failing to disclose any material fact about which he “should have *421known,” he will have to check the merchandise or property, and list every defect that he finds. Failure to do so certainly risks (if it does not assure) liability. Yet, it is the very purpose of an “as is” contract to shift the burden of inspection and the costs of hidden defects to the buyer. The Massachusetts Commercial Code, Mass.Gen.Laws ch. 106, § 2-316(3)(a) specifically authorizes “as is” contracts. As the district court pointed out, it is anomalous to read a different statute (chapter 93A) in a way that makes § 2-316(3)(a) of the UCC virtually meaningless. The panel majority says that perhaps the UCC’s “as is” rule will still have meaningful life in other situations. Which situations? Where? How?
Second, there is a theoretical argument suggesting that applying chapter 93A here may not help — indeed it may hurt — the consumer. The basic object of chapter 93A, insofar as it requires disclosure, is to allow the consumer to make an informed choice, and thus to protect him from entering into a contract that he would not ‘really’ want were he more knowledgeable or sophisticated. See generally E. Kintner, A Primer on the Law of Deceptive Practices ix-xi (1978). That purpose is not directly served when the bargaining parties are knowledgeable, sophisticated businessmen. Moreover, where the contract explicitly states that the knowledgeable buyer runs the risk of, say, hidden defects {e.g., where the contract says “as is”), the knowledgeable business buyer quite clearly knows what kind of situation he is getting into, and, in all likelihood, it is one (given the price) that he wants.
Under such circumstances, to allow an action under chapter 93A not only fails to serve the Act’s main purpose but indeed may harm those whom the Act seeks to protect. To insist that the knowledgeable business seller disclose all material facts that the seller “should have” known (to forbid, in effect, the “as is” contract), is to prevent the buyer and seller from allocating costs and risks as they choose in both the presumably rare situation involving deceptive conduct by the seller and the more typical wowdeceptive situation. And, such a prohibition, as a general matter, may raise the price of the underlying good or service by preventing the allocation of risks {e.g., of hidden defects) to the party willing to bear them most cheaply. Of course, one may think of this general price-increasing tendency as too theoretical, as ephemeral, or not worth much consideration when consumer protection is on the other side of the balance scale; but, it is, at the least, worth consideration when weighed against the need to protect those who typically need no protection (such as knowledgeable business buyers).
Third, there might be some justification for refusing to enforce an “as is” clause if the contract were ambiguous in some way that cast doubt on whether the buyer truly intended to waive his remedies against the seller. In such a case one might hesitate to find a waiver regardless of the knowledge or sophistication of the buyers. But this is not such a case: the “as is” clause in the Texaco-VSH contract could not be more clear.
Finally, I would hesitate to base a legal decision upon the foregoing considerations, were there Commonwealth legal precedent to the contrary. But there is not. The Massachusetts courts have not held that chapter 93A requires disclosure of all material defects in a case involving business buyers and sellers, let alone a case involving both businessmen and a contract explicitly agreeing that the disclosure need not take place. Marcil v. John Deere Industrial Equipment Co., 9 Mass.App. 625, 403 N.E.2d 430 (1980), cited by the panel majority, does not hold that a disclaimer of warranties (in a contract between two businesses) violates chapter 93A (even where it does not violate other law). The appellate court in Marcil specifically says it does not reach the issue:
Even if the vaguely worded allegations of the plaintiff’s complaint might be said to state claims for deceit or for violation of G.L. c. 93A, and even if the evidence might have supported such claims, the *422plaintiff cannot for the first time urge these characterizations of his claims upon this court, as he has failed to demonstrate to us that he gave the judge any indication that the counts were to be considered as such.
9 Mass.App. at 629, 403 N.E.2d at 433 (citations omitted). I do not see how the panel finds support in this Massachusetts Court of Appeals decision.
Nor is there support in the Supreme Judicial Court’s decision in Nei v. Boston Survey Consultants, 388 Mass. 320, 446 N.E.2d 681 (1983). The SJC there held chapter 93A applicable to a land sale contract involving consumers on one side of the bargaining table and a contract that did not explicitly or implicitly seek to allocate the burden of nondisclosure. The circumstances of that case take it outside the “as is” business sale transaction — the case here at issue and the case that strikes me as difficult.
The legal support for the majority’s position consists of the Attorney General’s regulation, which literally applies to all transactions, making no exception for “as is” business sales. There is no indication, however, that the Attorney General considered the “as is” business transaction when writing the regulation. At the same time, to apply the regulation literally makes a different statute — the UCC “as is” provision, § 2-316(3)(a) — nearly meaningless and seems not to further the purposes of chapter 93A. It is a common thing for statutes, rules, and regulations that purport to apply in ‘all’ circumstances, in fact to contain implied exceptions. See, e.g., 9 C. Wright & A. Miller, Federal Practice and Procedure (Civil) § 2558 at 671-72 (1971) (noting “plain error” exception to Fed.R.Civ.P. 51); see generally, Merz, The Meaninglessness of the Plain Meaning Rule, 4 Dayton L.Rev. 31 (1979). Under these circumstances, I agree with the district court that the regulation was not meant to override Massachusetts policy permitting “as is” contracts, at least where the contract language is clear, the contract is made by knowledgeable business parties, and the contract is untainted by any affirmative misrepresentation, fraud, or otherwise unlawful conduct.
For these reasons, I agree only in part with the panel majority.
APPENDIX
Excerpted below are relevant sections of V.S.H.’s original and amended complaints.
Original Complaint
H 19. “The failure of Texaco to disclose to V.S.H. the facts relating to the oil leaks referred to in paragraphs 11 and 12 [detailing V.S.H.’s discovery of two leaks] are facts the disclosure of which may have influenced V.S.H. not to enter into the transaction and agree to pay the sum of $2,800,000 for the premises or to pay a deposit in connection therewith of $280,-000.”
H 26. “The regulations, prohibitions, lien provisions and other requirements of the several federal and state environmental statutes referred to [in paragraphs 23-25], as applied to the facts relating to the oil leaks and spillages at the premises, result in a situation in which, at the time of closing, Texaco was unable to convey title free and clear of all liens, encumbrances and restrictions.”
Í128. “The deliberate and knowing concealment by Texaco of information relating to the oil leaks and spills ... and the U.S. Coast Guard proceedings ... occurred in the face of repeated inquiries by V.S.H. about the subject____ Its release of fragmentary information was misleading and misrepresented the facts.”
U 29. “The failure of Texaco to provide the facts regarding the oil leaks was intended to and in fact materially induced V.S.H. to agree to purchase the property on the assumption that no such problems existed. V.S.H. rightly relied upon that assumption in making its offer to purchase.”
*423 Amended complaint
1110. “Prior to submitting the offer to purchase ... V.S.H. ... on several occasions asked Texaco’s representatives about oil spills, leaks and other similar environmental problems at the site. On each occasion, Texaco’s representatives affirmatively stated that they were unaware of any such problems.
1115. “... The failure of Texaco to disclose the leaks and its affirmative misrepresentations in response to V.S.H.’s inquiries concerning the subject fraudulently concealed the problems and diverted V.S.H. from discovering the spillages before submitting the offer.”
H 26. “Texaco’s conduct was both unfair and deceptive. The acts of Texaco in failing to disclose the information regarding the oil leaks and in making affirmative misstatements and half-truths concerning the subject constitute willful or knowing violations of General Laws, chapter 93A, section 2, and the regulations promulgated in connection therewith.”
H 32. “Had V.S.H. purchased and taken possession of the property, it would have been obligated to report the leaks and spillages ... to federal and state officials.”
H 33. “Had V.S.H. purchased and taken possession of the property, it would have had an affirmative obligation to clean up or otherwise rectify the aforementioned spillages and leaks.”
1134. “Had V.S.H. purchased and taken possession of the property and remained inactive concerning the leaks and spillages, federal and state officials would have been authorized, and indeed obligated, to assume clean-up costs and to impose corresponding liens on the property. In addition, V.S.H. would have been subject to criminal penalties by fine or imprisonment, or to civil litigation.”
11 35. See 1126 of original complaint.
1137. “The deliberate and knowing concealment by Texaco of information relating to the oil leaks and spills ... and the U.S. Coast Guard proceedings ... occurred in the face of repeated inquires by V.S.H. about the subject prior to making the offer to purchase____ Its release of fragmentary information was misleading and misrepresented the facts. The statements of Texaco representatives that they were unaware of any environmental problems, including oil spills and leaks, connected with the property were knowing and affirmative misrepresentations of fact.”
1138. “The failure of Texaco to provide the facts regarding the oil leaks and its affirmative misrepresentations of fact were intended to and in fact materially induced V.S.H. to agree to purchase the property on the assumption that no such problems existed. V.S.H. rightly relied upon that assumption in making its offer to purchase.”