Sales and Leases | 126
1. The Perfect-Tender Rule v. Material Breach and Substantial Performance at Common Law Most law students will be familiar with the doctrine of substantial performance at common law. Under that concept, to be held in breach of contract, a party generally must commit a material breach. A material breach, in turn, is one that deprives the other party of the substantial benefit of her bargain. By contrast, minor, technical, or trivial breaches will not produce liability for breach of contract, so long as the party alleged to be in breach has substantially performed her obligations. The perfect-tender rule rejects the concept of substantial performance, at least when it comes to the seller. Under Article 2, both the goods themselves and the tender of their delivery must conform to the contract in every respect, however minor or trivial it may seem. [ See 2 Hawkland UCC Series § 2-601, n. 1, Westlaw (database updated June 2021); Albrecht v. Fettig , 932 N.W.2d 331 (Neb. Ct. App. 2019).] Example : A contractor agreed to build a house for an investor using only Brand A pipes. Due to a clerical error, the contractor wound up building the house using Brand B pipes instead. Brand B pipes were of substantially identical quality to Brand A pipes. The breach was discovered only after the contractor finished the house. At common law, this breach would likely not have been material, and thus the contractor would not have been found in breach of contract. The investor did not get Brand A pipes, but she got pipes of basically identical quality to Brand A pipes. Thus, the investor got the substantial benefit of her bargain. Under Article 2’s perfect- tender rule, though, using Brand B pipes instead of Brand A pipes was a breach that would have given the investor various remedies, as set forth in § 2-601. [ Adapted from Jacob & Youngs v. Kent , 129 N.E. 889 (N.Y. 1921); see also Albrecht v. Fettig , 932 N.W.2d 331 (Neb. Ct. App. 2019).]
2. Buyer’s Remedies for Imperfect Tender
If the tender of delivery or the goods themselves fail to conform to the contract in any respect, then generally, the buyer may:
reject the entire delivery, accept the entire delivery, or accept any commercial units within the delivery and reject the remainder.
[U.C.C. § 2-601 (1951); Acceptance and Rejection of Goods, Revoking Acceptance, infra .]
a. Buyer’s Partial Acceptance as Not Limited to Conforming Goods
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