Does an "as-is" clause waive DTPA liability in Texas?

Rule Under Texas Law

• In Prudential Ins. Co. v. Jefferson Assocs., the court held that an “as is” clause did not bar the buyer’s fraud and DTPA claims where the seller allegedly made affirmative misrepresentations and concealed the building’s asbestos condition, even though the buyer had inspected the property.
• An as-is clause does not protect a seller who makes affirmative misrepresentations about the goods or property.
• The clause must be clear, unambiguous, and agreed to voluntarily—not buried in fine print.
• Courts consider the relative sophistication of the parties and whether the clause was meaningfully negotiated.

What You Must Prove

• For the as-is defense to apply, the defendant must prove the clause was clear and conspicuous.
• The buyer must have had an opportunity to inspect or investigate.
• The claim must relate to conditions discoverable through reasonable inspection, not active concealment.

Common Defenses

• A properly drafted and negotiated as-is clause may bar warranty claims.
• The defense is stronger when both parties are sophisticated commercial entities.
• Courts may enforce as-is clauses when the buyer had access to all relevant information.
• However, the clause fails if the seller made fraudulent or intentionally misleading statements.

Damages and Attorney's Fees

• If the as-is clause is invalid, standard DTPA damages apply including economic damages and potentially treble damages.
• If the clause is enforced, the consumer may be limited to breach of contract remedies.
• Attorney's fees may still be recoverable if the consumer prevails on claims not barred by the clause.

Related Texas DTPA Pages