Sales and Leases | 128
1. Seller’s Right to Cure as a Limitation on Buyer’s Remedies If the seller seasonably notifies the buyer of the intention to cure and timely makes a conforming delivery, then the seller is deemed to have performed her contractual obligations. It follows, then, that the buyer will have no remedy for breach. Hence, the buyer must perform, or else be in breach. In that vein, if the buyer rejects the seller’s proper cure by way of conforming delivery, the buyer will be in breach. [ See 2 Hawkland UCC Series § 2-508:1, Westlaw (database updated June 2021).] 2. Right to Cure as Belonging to Seller, Not to Buyer Cure is the seller’s privilege, not the buyer’s entitlement. That is, the seller may choose to effectuate a cure, provided she complies with the abovementioned requirements. The seller is not required to do so, nor may the buyer compel her to do so. [ See 2 Hawkland UCC Series § 2-508:1, Westlaw (database updated June 2021).] 3. Rejection Requirement for Seller to Cure As mentioned, for the seller to have any right to cure, the buyer must reject the goods. Thus, if the buyer accepts goods, even nonconforming goods, the seller has no right to cure. [ See 2 Hawkland UCC Series § 2-508:1, Westlaw (database updated June 2021).] 4. Seasonably Notifying the Buyer The seller seasonably notifies the buyer of the intent to cure if the notification occurs either within any agreed time or, if none, within a reasonable time. What is a reasonable time, of course, depends on the case’s peculiar facts. Prime factors in assessing reasonableness include (1) how long the seller has left to perform, (2) the buyer’s necessity for the goods, and (3) whether the buyer has acted in good faith to procure substitute goods. [ See U.C.C. § 1- 205 (2001); U.C.C. § 2-508, cmt. 1 (1951); 2 Hawkland UCC Series § 2-508:2, Westlaw (database updated June 2021).] 5. Manner of Cure The ideal method of cure is to provide conforming, replacement goods. But the seller should be able to repair any defective goods, assuming repair would produce conforming goods within the time for performance. Theoretically, because the time for the seller’s performance is the cutoff point for cure, the seller should have as many chances to cure as she needs within that time frame. But even here, the seller’s opportunities to cure may be limited if repeated attempts would do more harm than good, considering (1) the resulting inconvenience and cost, (2) the likelihood that the efforts to cure or repair will succeed, and (3) whether cure will resolve the dispute informally. Yet if the buyer’s faith in the product is too badly shaken due to the defect, some courts have indicated that replacement, rather than repair, may be required.
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