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The UCC affords special remedies if (1) one party has discretion to make a specification
that materially affects the other party’s performance but does not seasonably make the specification, or (2) one party’s cooperation is needed for the other to perform as agreed, but that cooperation is not seasonably forthcoming. Here, in addition to any other remedies the affected party may have, that party is excused for any delay in her own performance resulting from the failure. In addition, that party may either (1) proceed to perform in any reasonable way or (2) after some material part of her own performance comes due, treat the failure of specification or cooperation as a breach by failure to deliver or accept the goods. [U.C.C. § 2-311(3) (1951).] Example : An inventor contracted to build, for a manufacturer, a machine that would produce rotary dry caps at a high rate. Per the contract, the manufacturer was to provide specifications for the design. Without those specifications, obviously, the inventor could not build the machine. The manufacturer held off providing the specifications by several months, which in turn caused the inventor to provide the machine three months after it was contractually due. Here, the inventor’s tardy performance is excused. The inventor’s own performance depended on the manufacturer providing the necessary specifications, so the manufacturer’s delay in doing so necessarily hindered the inventor. [ See Precise Tool & Gage Co., Inc. v. Multiform Desiccants, Inc. (In re See Precise Tool & Gage Co., Inc.) , 42 B.R. 677 (E.D. Tenn. 1984).] Risk of Loss without a Breach of Contract under § 2-509 Section 2-509 sets forth the rules to determine risk of loss, assuming neither party has breached the contract. Different rules, found in § 2-510, apply if there has been a breach. This section of the outline covers § 2-509; the following section addresses § 2-510. Note : The rules in § 2-509 go hand in hand with the rules on the seller’s tender of delivery and shipment of goods. For more exhaustive treatment of this subject, see Seller’s Tender of Delivery and Shipment of Goods, infra . 1. Risk of Loss under § 2-509 Generally Section 2-509 sets forth the general rules governing when the risk of loss on the goods passes from the seller to the buyer. The provision’s general thrust is to place the risk of loss on the party with control over the goods when they are lost or damaged. In general, risk of loss will pass when the seller has performed its contractual obligations, though the particular rules vary, depending on the method of delivery. Section 2-509 is a gap-filler, so its rules
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