It is increasingly common for commercial contracts between sophisticated parties to include a disclaimer that one party, perhaps the buyer, has not relied on any representations made by the counterparty, perhaps the seller, other than those representations set forth in the contract. While such disclaimers are generally enforceable, New York courts have drawn two exceptions to their enforceability. First, such disclaimers are generally enforceable only where they are specific and track the substance of the alleged misrepresentation or omission.1 For example, a general disclaimer that the buyer has not relied on any representation of the seller may be unenforceable, whereas a disclaimer limited to representations concerning environmental matters may be enforceable. Second, even where the disclaimer is specific and tracks the substance of the alleged misrepresentation, the disclaimer may not provide protection where the facts misrepresented or omitted were peculiarly within the knowledge of the party seeking the protection of the disclaimer.2
A recent decision by Justice Barbara Kapnick of the New York County Commercial Division applied both of these concepts on a motion to dismiss, the court concluding that additional factual development was required to determine the enforceability of the disclaimer at issue. Harbinger Capital Partners Master Fund I Ltd. v. Wachovia Capital Markets LLC, 602529/08 (May 10, 2010).
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