In Texas, on the other hand, the scope for a court to find an implied warranty of merchantability is far broader. Here's a quote from Ameristar Jet Charter v. Signal Composites ( http://caselaw.lp.findlaw.com/data2/circs/5th/0011270cv0.html ):
<quote> Under Texas law the warranty of merchantability is implied in every transaction for the sale of goods if the seller is a merchant of goods of that type. See Hininger v. Case Corp., 23 F.3d 124, 128 (5th Cir. 1994) (citing Tex. Bus. & Com. Code § 2.314(a)). Section 2.104 of the Texas Business and Commercial Code provides that a "merchant" is: a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. Tex. Bus. & Com. Code § 2.104. In Nelson v. Union Equity Coop. Exchange, 548 S.W.2d 352, 357 (Tex. 1977), the Texas Supreme Court expansively construed the definition of merchant under the code as "intended to apply to all but the most casual or inexperienced sellers." </quote> On the other hand, later in the decision: <quote> Under Texas law, a buyer's damages on a breach of warranty claim are the difference between the value of the goods as accepted and the value of the goods as warranted, unless special circumstances show proximate damages of a different amount. See Tex. Bus. & Com. Code § 2.714(b). </quote> Even if the "value of the goods as warranted" is negligible, I can imagine the existence of an implied warranty of merchantability providing a hook on which to hang "special, incidental, or consequential" damages in the event of negligence on the part of a GPL author or contributor. Negligence within a contractual relationship is a much lower standard than "the common law duty to exercise reasonable care to prevent foreseeable harm" (quoted from Onita Pacific in the last message). So a GPL author or distributor who can't hold an end user to acceptance of the warranty disclaimer might find himself on the receiving end of a non-trivial breach of warranty lawsuit in Texas. Comments from the legally skilled? Cheers, - Michael (IANAL, TINLA)
