concurring and dissenting.
I concur in the conclusions reached by the panel majority (the court) except for its affirmance of the district court’s erroneous rejection of Oren’s implied warranty claims based upon Blue Bird’s statute of limitation defense. On this issue, I re*795spectfully dissent and would remand the implied warranty claims for trial.
INTRODUCTION
The court purposely ignores several relevant and controlling statutory issues because the parties fail, in its view, to engage in formal discussion and disputation of the matters. But, causes of action based upon implied warranty, and affirmative defenses to them, were directly joined in the district court and should be fully dealt with in this appeal. Indeed, appellate courts often of necessity resolve issues on the basis of the record alone, even without argument and briefing by the parties, where, as here, injustice might otherwise result. Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Nat’l Metalcrafters v. McNeil, 784 F.2d 817, 825 (7th Cir.1986); Pro Svc. Auto., L.L.C. v. Lenan Corp., 469 F.3d 1210, 1213 (8th Cir.2006).
Unless otherwise properly modified or excluded, the Minnesota Uniform Commercial Code (UCC), as an incident of public policy, requires implied warranties of merchantability and fitness for a particular purpose to flow as a matter of law to a purchaser of goods, even outside the four corners of a written sales agreement. In Minnesota, these warranties run from both the manufacturer, here Blue Bird, and the immediate seller, here Shorewood. Minn. Stat. Ann. §§ 336.2-314; 2-315. Nelson v. Int’l Harvester Corp., 394 N.W.2d 578, 581 (Minn.Ct.App.1986), overruled on other grounds by Lloyd F. Smith Co., Inc. v. Den-Tal-Ez, Inc., 491 N.W.2d 11 (Minn. 1992).13
BACKGROUND
The Blue Bird RV, “goods” as defined in Minn.Stat. Ann. § 336.2-105(1), was delivered to Oren by Shorewood, Blue Bird’s authorized dealer, on July 31, 2003. Oren filed suit against Shorewood and Blue Bird in Minnesota state court on July 15, 2005. The vehicle was accompanied by a Blue Bird “limited warranty.” Appellants’ Add. at 52-53. An exact copy of this warranty as delivered to Oren is attached to and incorporated within this dissent by reference as Appendix A.
The relevant sections and subsections (or portions thereof) of the Minnesota UCC that govern both the express and implied warranties that were extended to Oren are as follows:
General definitions
(b)(10) “Conspicuous,” with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
*796(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
Minn.Stat. Ann. § S36.1-201(b)(10).
Express Warranties by affirmation, promise, description, sample
(1) Express warranties by the seller are created as follows:
(a) Amy affirmation of fact or promise made by the seller to the buyer which relate to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that the seller have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.
Minn.Stat. Ann. § 336.2-313.
Implied warranty: merchantability; usage of trade
(1) Unless excluded or modified (section 336.2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. ...
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; and
(d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled as the agreement may require; and
(f) conform to the promises or affirmations of fact made on the container or label if any.
(3) Unless excluded or modified (section 336.2-316) other implied warranties may arise from course of dealing or usage of trade.
Minn.Stat. Amn. § 336.2-314.
Implied warranty; fitness for 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 select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
Minn.Stat. Ann. § 336.2-315.
Exclusion or modification of warranties
(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or *797extrinsic evidence (section 336.2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.
(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous....
(3) Notwithstanding subsection (2)
(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
Minn.Stat. Ann. § 336.2-316.
Statute of limitations in contracts for
sale
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
(4) This section does not alter the law on tolling of the statute of limitations, nor does it apply to causes of action which have accrued before this chapter becomes effective.
Minn.Stat. Ann. § 336.2-725.
DISCUSSION
I.
As stated above, the UCC provides that breach of an implied warranty “must be commenced within four years” but the parties may reduce the period of limitation by agreement to not less than one year. Minn.Stat. Ann. § 336.2-725(1). Thus, by agreement, the UCC authorized Blue Bird to shorten the period to one year subject to restrictions set forth in section 336.2-316(2) above, that is that any modifications or exclusions be in writing, unambiguous, and mention the word “merchantability.” Dubbe v. A.O. Smith Harvestore Prods., Inc., 399 N.W.2d 644, 647-48 (Minn.Ct.App.1987). In Dubbe, the trial court and court of appeals found the manufacturer’s warranty disclaimer sufficient as a matter of law. The Minnesota court noted that Harvestore had totally disclaimed all implied warranties, capitalized all words in the entire disclaimer section, and specifically mentioned the word “merchantability.” The courts also observed that Mr. Dubbe stated in the agreement that he had read the disclaimer. Id. In this case, however, on the crucial issues of disclaiming implied warranties and reducing the litigation limitation period as authorized by Minn.Stat. Ann. § 336.2-725(1), we face very different facts. Oren makes no statement that he was asked to or did read the language outlining the reduced limitation period. And, as noted in Appendix A, the capitalized language dealt not with the lawsuit limitation period but rather created the overall length of the warranty period, including an implied warranty duration of two or three years, limited the nature of some recoverable damages, and specified *798which of Blue Bird’s employees could make additional representations. It bears repeating that this capitalized portion of the contract did not at all deal with the period of time in which litigation could be commenced for breach of any of the warranties. Indeed, the statute of limitation reduction language is found in a wholly new paragraph presented in significantly smaller, uncapitalized type. The new paragraph totally deals with a different subject than the capitalized portions. Blue Bird slips the limitation language into the fourth and last sentence of the new paragraph, which sentence reads, in isolation both as to location and subject matter, as follows: “[a]ny suit alleging a breach of this limited warranty or any other alleged warranty must be filed within one year of breach.” There is no mention of either “implied warranty” or “merchantability” within or near this supposedly limiting language.
This crucial, purportedly limiting language violates MinmStat. Ann. § 336.1-201(b)(10)(A) and (B) of the UCC which, as earlier stated, requires capital letters equal or greater in size than the surrounding text or use of contrasting type, font or color or set-offs that call attention to the language. See Valley Paving, Inc. v. Dexter & Chaney, Inc., No. C2-00-361, 2000 W.L. 1182800, at *1-2 (Minn.Ct.App. Aug. 22, 2000). As a matter of law, this limiting language relied upon by Blue Bird and the court is both inconspicuous and ambiguous. Accordingly, reviewing the matter de novo as we must, a four-year statute of limitations should apply.
II.
Assuming, but purely for argument’s sake, the validity of Blue Bird’s claimed one-year statute of limitation, and its contention that the limitation period began to run at the time of the July 31, 2003, delivery, Oren’s implied warranty of merchantability claim is still not barred. As an initial matter, Blue Bird’s express warranties purport to be valid for either two or three years and the implied warranties “are limited to the warranty period of this written warranty.” Appendix A. Giving Oren the benefit of these inconsistent terms, the warranty period for the implied warranties would be three years. Nonetheless, for our purposes, a two-year period is more than enough. And, while there is probably an implied warranty of fitness for a particular purpose under Minn.Stat. Ann. § 336.2-315 that may have passed to Oren, it is not particularly relevant to my concerns. An implied warranty of merchantability was clearly imposed upon Blue Bird as a matter of law and public policy under Minn.Stat. Ann. § 336.2-31414 and such a warranty carries with it measures of liability and damages beyond those purportedly “excluded” or “modified” by Blue Bird’s “limited warranty.” See Minn.Stat. Ann. § 336.2-316. Thus, the viability of the merchantability warranty is more than of academic interest to Oren.
Without argument, Blue Bird expressly warranted the RV to be free from defects in at least three ways. See Appellants’ Add. at 52. And, as conceded by both Blue Bird and the court, there is little doubt that the RV was “defective” when delivered and, according to the court, little doubt that the vehicle was never “merchantable” at any time relevant to this dispute, or, at least, a fact question not reachable through summary judgment exists on this issue.
In this regard, paragraph one of the “Limited Warranty” is of particular interest. It says “3. For a period of two (2) years from the date of delivery to the original purchaser [Blue Bird] warrants all other components installed by Blue Bird *799and Wonderlodge.” Id. Then, in the third and sixth paragraphs of the “Limited Warranty,” Blue Bird reserves for this two-year period the right to attempt to cure any defects and make the vehicle merchantable as required by the implied warranty. Accordingly, if you credit Blue Bird’s one-year statute of limitation affirmative defense and attempt to square it with the court’s conclusions in this appeal, the one-year lawsuit limitations period for the implied warranties “expired” well before Blue Bird gave up its right to cure the defects which would have made the RV comply with the requirements of the implied warranty. This result flies in the face of approximately fifty years of consumer equity policy imbedded within the enactment of the Uniform Commercial Code in, by now, all fifty states, some territories, and a commonwealth. Blue Bird’s clever penmanship and paragraph positioning cannot be allowed to overrule the policy pronouncements of the Uniform Commercial Code.
III.
Even if you avoid the ambiguity, con-spieuousness and public policy problems inherent in the facts at work in this case, a further, and perhaps more important, error lurks within the court’s opinion. I again assume for purposes of discussion the validity of the court’s analysis that Oren’s cause of action for breach of the implied warranty occurred upon delivery of the “unmerchantable” RV on July 31, 2003. I further assume that a statute of limitations period of one year binding upon Oren also commenced on that date. Nonetheless, Minn.Stat. Ann. § 336.2-725, the UCC section that authorizes a reduction in the limitation period, also states in subsection (4) that “[t]his section does not alter the law on tolling of the statute of limitations.” Thus, any law on tolling available to Oren in Minnesota interrupted the running of the limitation period applicable to this RV sale. At least three tolling theories serve to protect Oren’s breach of implied warranty cause of action. They include the doctrines of equitable estoppel, estoppel through misrepresentation and estoppel by repair. While the court does recognize the applicability of equitable es-toppel in this action and, indeed, incompletely applies it to this case, it incorrectly decides the issue as a question of law. On the evidence in this record, this is clear error.
Upon equivocal evidence, equitable es-toppel, or not, is a question of fact for the jury. L & H Transport, Inc. v. Drew Agency, Inc., 403 N.W.2d 223, 227 (Minn.1987); Rhee v. Golden Home Builders, Inc., 617 N.W.2d 618, 622 (Minn.Ct.App.2000). Of even more importance, Blue Bird’s statute of limitations affirmative defense is also a question of fact for the jury. Ciardelli v. Rindal, 582 N.W.2d 910, 912 (Minn.1998). The court concedes that Blue Bird attempted, and Oren permitted, additional, but failed, repairs until at least October 4, 2004. Ante at 788-89. Based upon this uncontradicted evidence, the court correctly states “Oren continued to believe Blue Bird was capable of eventually repairing the RV” and concluded that a genuine issue of fact existed as to “the date Oren knew or should have known Blue Bird was unable to maintain the RV as warranted” — i.e., the date that the defect could be cured by Blue Bird making the vehicle merchantable as impliedly warranted. Ante at 788-89. This is, of course, the stuff of detrimental reliance, an important and likely controlling element of equitable estoppel. Yet for purposes of a statute of limitations calculation on Oren’s implied warranty, the court adopts July 2, 2004, a date untethered to any legally significant event in this transaction. Ante at 790. And, in doing so, without explanation, the court appears to lift Blue Bird’s burden of proof on its affirmative limita*800tions defense and effectively places it upon Oren. The court does this by requiring Oren to adduce direct (as opposed to circumstantial) evidence of his affirmative forbearance in commencing suit based upon Blue Bird’s many failed efforts to make the RV merchantable.
Even so, and without regard to burdens of proof, factual questions abound on both issues-equitable estoppel and statute of limitations. For instance, as the court concedes, Oren permitted Blue Bird to complete additional repairs as late as October 4, 2004, which, according to the court “strongly suggested] Oren continued to believe Blue Bird was capable of eventually repairing the RV.” Ante at 788. This is, of course, full-blown evidence of reliance by Oren on Blue Bird’s assurances. If anything, equitable estoppel interrupting the running of the statute of limitations could have been determined as a matter of law on this evidence alone. But, in November 2004, Blue Bird twice wrote to Oren, representing that it would “stand behind our commitment to provide [Oren] the best possible service” and that it “remain[ed] willing to work with [Oren] directly or through our distributor to assure [Oren] that the motor home conform[ed] to the warranty.” Appellants’ App. at 10-11. Thereafter, Oren alerted Blue Bird in a letter dated November 29, 2004, that the RV again would not start. Id. at 12-13. Then, Blue Bird responded on December 1, 2004, finally stating there was nothing wrong with the motor home and that Blue Bird had lived up to its obligations. Id. at 19. In response, on December 6, 2004, Oren, for the first time, raised the issue of litigation. Id. at 20. Clearly then, until late into November 2004, there are enough disputed facts to require presentation of the issues of equitable estoppel and the limitation defense to a jury. Even the earlier October 4 estoppel date would have been less than ten months prior to the expiration of a twelve-month statute of limitations.
There are also other fact issues in play in this litigation, given Blue Bird’s reservation of its right to cure defects for a two-year period. This raises the possibility of estoppel by misrepresentation. Cf. Vesta State Bank v. Indep. State Bank of Minn., 518 N.W.2d 850, 855 & n. 7 (Minn.1994) (noting that statute of limitations begins to run only when the aggrieved party discovers the facts constituting fraud, and that this rule applies to causes of actions arising in transactions governed by the UCC due to the operation of § 336.2-725(4)).
Finally, the court does not address, and in fact, summarily rejects, Minnesota’s es-toppel-by-repair doctrine. Ante at 789 n. 7. I concede that the Minnesota Supreme Court has never held that promises by a seller to make repairs give rise to estoppel or a tolling of a statute of limitation. I predict, however, that available precedent establishes the viability of the doctrine in Minnesota.
In Colorado-Ute Electric Ass’n, Inc. v. Envirotech Corp., 524 F.Supp. 1152 (D.Colo.1981), Buell furnished a precip-itator for a power plant that failed its first performance test. This made it unmer-chantable and in breach of an implied warranty of merchantability governed, like here, by the statute of limitations set forth in Minn.Stat. Ann. § 336.2-725(1). After the first failure, also like here, Buell repeatedly assured Colorado-Ute that it could and would remedy the unmerchanta-ble performance. When Buell failed to cure, Colorado-Ute sued one year beyond the four-year statute of limitations, and Buell responded with a “tender of delivery” statute of limitations defense. The court rejected the defense and invoked the doctrine of tolling-by-repair saying “where the obligor agrees to perform its contract obligations within a reasonable period, [here two years under Blue Bird’s express *801warranties] the statute of limitations does not begin to run until the efforts to perform are abandoned” and even if the repair work had not tolled the statute of limitations, Buell would be estopped from taking advantage of it. 524 F.Supp. at 1156. In an unpublished 1989 opinion of the Minnesota Court of Appeals, Deters v. Columbia Heights Motors, No. C7-89-931, 1989 WL 206569, at *2 (Minn.Ct.App. Oct. 10, 1989), the court stated “[u]nder the tolling by repair doctrine, a defendant’s conduct in assuring the plaintiff that it could fix a complained-of defect and making continued efforts to cure that defect may operate to toll the limitations period. See Colorado-Ute Electric Association, Inc. v. Envirotech Corp., 524 F.Supp. 1152, 1155 (D.Colo.1981).” In 1991, the Minnesota Court of Appeals held that promises to repair tolled a section 336.2-725(2) cause-of-action-accrual claim. Church of the Nativity of Our Lord v. WatPro, Inc., 474 N.W.2d 605, 611 (Mmn.Ct.App.1991).
Sohns v. Pederson, 354 N.W.2d 852 (Minn.Ct.App.1984), involved an implied warranty claim which accrued upon delivery of a “Bobcat” skidloader. It was immediately clear that the Bobcat was defective and over a period of two years, the dealer promised a new machine. The plaintiff brought an action eight months late absent estoppel. The Minnesota court held that the promises to replace the Bobcat tolled the running of the statute of limitations. Id. at 855. The failure to deliver a promised non-defective replacement and the failure to deliver promised repair services sufficient to cure a defect seem to be almost indistinguishable acts for purposes of tolling a statute of limitations.
Likewise, Lake Superior Center Auth. v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458 (Minn.Ct.App.2006), involved a real estate defect. Although the parties knew of the defect immediately, discovery for purposes of the statute of limitations did not occur until it was clear that cure of the defect was not possible, notwithstanding repeated attempts to do so. Id. at 473.
This Minnesota precedent convinces me that the estoppel-by-repair doctrine is alive and well in Minnesota in addition to the equitable estoppel doctrine already validated by the court. At the bottom line, estoppel, or not (under any of the three doctrines) presents a question of fact not susceptible to dismissal by the court as a matter of law through a motion for summary judgment.
CONCLUSION
For any and all of the above-stated reasons, the district court’s grant of summary judgment dismissing Oren’s implied warranty of merchantability claims should be reversed. From the court’s contrary conclusion, I dissent.
*802APPENDIX A
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*803[[Image here]]
. While the warranties at issue provide that Georgia law governs their terms, the court says the parties agreed to apply Minnesota law, purportedly because the parties assumed that there were no differences in the law of the two states. This assumption is incorrect. Georgia, unlike Minnesota, requires direct privity between a manufacturer and a purchaser in order for an implied warranty to be binding. McQueen v. Minolta Business Solutions, Inc., 275 Ga.App. 297, 620 S.E.2d 391, 393-94 (2005). The immediate contract of sale in this case was between the manufacturer’s dealer, Shorewood, and buyer Oren even though some of the warranties extended to Oren by Shorewood were underwritten and to be performed by Blue Bird.
. Section 336.2-314(2)(a)-(f) defines "merchantability.”