dissenting.
I cannot agree with the majority’s decision affirming the judgment of the trial court in this case. Under the circumstances before us, it is my opinion that appellant was entitled to judgment as a matter of law and, therefore, I must dissent.
In Division 1 of the opinion, the majority, relying primarily upon foreign authority, finds that there was evidence to support the jury’s verdict that the mobile home was “nonconforming.” As the majority recognizes, however, the plaintiffs in this case obtained and received exactly what the contract between the parties described. In fact, they received the exact mobile home which they had viewed and selected on the dealer’s lot. The majority opinion blurs the distinction between “nonconforming” and “defective.” The effect of the majority’s ruling is to allow every purchaser who later believes the item purchased is defective to seek to rescind the contract on the basis of allegations that the object of the sale was “nonconforming.” I do not believe this is the law. Compare Hill Aircraft &c. Corp. v. Planes, Inc., 169 Ga. App. 161 (312 SE2d 119) (1983). See also Bicknell v. B & S Enterprises, 160 Ga. App. 307 (287 SE2d 310) (1981). Thus, it is my opinion in the case at bar that, regardless of any defects which may have existed in the product sold, the product itself was not “nonconforming” and this issue was erroneously submitted to the jury.
In Division 2 of the opinion, the majority finds unenforceable, as unconscionable, the exclusion of implied warranties contained in the agreement between the parties. Paragraph 9 of the contract states as follows: “EXCLUSION OF WARRANTIES. I UNDERSTAND THAT THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED ARE EXCLUDED BY YOU FROM THIS TRANSACTION AND SHALL NOT APPLY TO THE GOODS SOLD. I UNDERSTAND THAT YOU MAKE NO WARRANTIES WHATSOEVER REGARDING *532THE UNIT OR ANY APPLIANCES OR COMPONENT CONTAINED THEREIN, EXCEPT AS MAY BE REQUIRED UNDER APPLICABLE STATE LAW.” In addition to being in all capital letters, paragraph 9 of the contract was in boldface type. Therefore, the contract in this case clearly and unequivocally met the requirements for valid exclusion of implied warranties as set forth in OCGA § 11-2-316.
Decided March 19, 1987 Rehearing denied April 3, 1987 James E. Brim III, for appellant. Ernest H. Woods III, for appellees.In determining the otherwise valid exclusion of implied warranties to be “unconscionable” in this case, the majority is persuaded by the fact that the manufacturer, whose warranties the plaintiffs received and took advantage of for some time, has become defunct. The problem with this analysis is that the statutory provision authorizing a court to refuse to enforce a contract because of unconscionability is contingent upon the finding of the court that the contract was “unconscionable at the time it was made. . . .” (Emphasis supplied.) OCGA § 11-2-302. At the time of the execution of this contract, there is no doubt that the exclusion of warranty provision was in conformity with the requirements of the law and was not unconscionable. The Supreme Court case of Freeman v. Hubco Leasing, 253 Ga. 698 (324 SE2d 462) (1985) is distinguishable because in Freeman, the effect of the disclaimer, under all of the circumstances of the agreement and the facts of the case, was to deprive the purchaser of any remedy. I believe that the implied warranty disclaimer in this case is valid and enforceable and that the trial court erred in denying appellant’s motion for directed verdict.
Because, based upon the above discussion, it is my opinion that appellant is entitled to judgment as a matter of law, I would not reach the issues concerning attorney fees as discussed in Division 3 nor the enumerations directed to the charge as discussed in Division 4. I would reverse the judgment of the trial court and, therefore, I respectfully dissent.
I am authorized to state that Presiding Judge Banke and Judge Sognier join in this dissent and that Presiding Judge Deen joins this dissent except that as to Division 2 of the majority opinion, he joins this dissent in judgment only.