Agency Disclaimer

"Written text is defined as conspicuous in Bus. & Com. Code Ann. §1B.1.201 when it is:

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

(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.

Other cited sections and their current location in the Code include (Exclusion or Modificaiton of Warranties) which is now found in Tex. Bus. & Com. Code Ann. §2A.316, as well as 2A.209 (Modification, Rescission and Waiver) and 2A.202 (Final Written Expression; Parol or Extrinsic Evidence).

"A disclaimer denying the existence of any agency relationship between the leasing company and the equipment vendor and vendor’s salespeople is an important contractual tool in the toolbox of leasing and finance companies in Texas.

Texas Courts have come down on both sides of the fence on whether disclaimers of agency clauses are effective in lease cases. In Stewart v. United States Leasing Corporation, 702 S.W.2d 288, 290 (Tex. App.—Houston [1st Dist.] 1985, no writ), the Houston Court of Appeals without much discussion upheld the disclaimer of agency clause in the lease when it affirmed the summary judgment in favor of United States Leasing. See also Southwest Park Out-patient Surgery, Ltd. v. Chandler Leasing Division, 572 S.W.2d 53 (Tex. Civ. App.-Houston [1st Dist.] 1978, no writ) (upholding summary judgment for lessor and holding lessee liable for the stipulated rental payments). But see Tri-Continental Leasing Corp. v. Law Office of Richard W. Burns, 710 S.W.2d 604, 607 (Tex. App.—Houston [1st Dist.] 1986, no writ) (distinguishing Chandler and upholding the trial court’s finding that the lease was unconscionable, given the “entire atmosphere in which agreement was made.”) "