Commercial Law

Class 8
Performance
Professor Rowe
Spring 2015

 2-608(1): Revocation of
Acceptance in Whole or in Part
The buyer may revoke his acceptance of a lot or commercial
unit if a non-conformity substantially impairs its value to him
and he accepted it on the reasonable assumption that the nonconformity would be cured and it has not been seasonably
cured.
The buyer may also revoke his acceptance of a lot or
commercial unit if a non-conformity substantially impairs its
value to him and he accepted it without discovery of the nonconformity, if his acceptance was reasonably induced either by
the difficulty of discovery before acceptance or by the sellers
assurances.

 2-608(2), (3): Manner

and Effect of Revocation
Revocation of acceptance must occur within a reasonable time
after the buyer discovers or should have discovered the ground
for it and before any substantial change in condition of the
goods which is not caused by their own defects. ( 2-608(2))
Revocation of acceptance is not effective until the buyer
notifies the seller of it. ( 2-608(2))
A buyer who revokes has the same rights and duties with
regard to the goods as if he had rejected them. ( 2-608(3))

Colonial Dodge, Inc. v. Miller

Revocation of Acceptance
Substantial impairment means whether the
non-conformity has a devaluing effect on [that]
buyer (subjective standard). Under 2-610,
comment 3, substantial impairment means
material inconvenience or injustice will result.
Privity required: Buyer can only revoke as to his
seller and not remote manufacturer

How to Determine If Use After

Revocation Was Reasonable
1. Upon being apprised of buyers revocation of his acceptance, what instructions,
if any, did seller give to buyer concerning return of the now-rejected goods?
2. Did buyers business needs or personal circumstances compel continued use?
3. During the period of such use, did seller persist in assuring buyer that all nonconformities would be cured or that provisions would otherwise be made to
recompense the latter for the dissatisfaction and inconvenience the defects
caused him?
4. Did the seller act in good faith?
5. Was seller unduly prejudiced by buyers continued use?
6. Seller may be entitled to setoff for buyers use and resulting depreciation.

 2-612: Installment Contract; Breach

An installment contract is one which requires or authorizes the delivery of
goods in separate lots to be separately accepted. ( 2-612(1))
The buyer may reject any installment which is non-conforming if the nonconformity substantially impairs the value of that installment and cannot be
cured. ( 2-612(2))
If the non-conformity does not fall within subsection (3) and the seller gives
adequate assurance of cure, the buyer must accept the installment. ( 2-612(2))
Whenever non-conformity or default with respect to one or more installments
substantially impairs the value of the whole contract, there is a breach of the
whole. ( 2-612(3))
The aggrieved party reinstates the contract if he accepts a non-conforming
installment without seasonably notifying of cancellation, or if he brings an
action with respect only to past installments, or demands performance as to
future installments. ( 2-612(3))

Bayer Corp. v. DX Terminals, Ltd.

 2-508: Cure by Seller of Improper

Tender or Delivery; Replacement
Where any tender or delivery by the seller is rejected because
non-conforming and the time for performance has not yet
expired, the seller may seasonably notify the buyer of his
intention to cure and may then within the contract time make a
conforming delivery.
Where the buyer rejects a non-conforming tender which the
seller had reasonable grounds to believe would be acceptable,
the seller may if he seasonably notifies the buyer have a
further reasonable time to substitute a conforming tender.

T.W. Oil, Inc. v. Consol.

Edison Co. of N.Y., Inc.