Sales and Leases | 129
Of course, any tender of nonconforming goods is not an effective cure. [ See U.C.C. § 2-508(1) (1951); 2 Hawkland UCC Series § 2-508:2, Westlaw (database updated June 2021).]
Examples : (1) A married couple contracted to buy a recreational vehicle (RV) from a dealer. Per the contract, the RV was to have two air conditioners. When the dealer tendered the RV to the couple, though, it had only one air conditioner, located in the roof. So, the couple rejected the RV. In response, the dealer offered to uninstall the roof air conditioner and install one in the front and one in the back. This solution, however, would have left a conspicuous hole in the roof. On similar facts, an appellate court held that the seller’s offered cure was inadequate. Certainly, the RV would have had two air conditioners, as required. But the hole in the roof would have substantially impaired the RV’s usefulness to the couple. In any case, it was implied in the contract that there be no conspicuous holes in the roof. [ Adapted from Worldwide RV Sales & Svc., Inc. v. Brooks , 534 N.E.2d 1132 (Ind. Ct. App. 1989).] (2) A cattle broker contracted to deliver to a cattle rancher approximately 150 head of cattle. Of these, roughly 80 percent were to be red-hided cattle, and the remainder were to be black- hided cattle. The difference in color mattered; red-hided cattle were rarer, fetched a higher price, were more docile, and tolerated heat better than black-hided cattle. But when the broker delivered the cattle, they consisted of about 55 percent red-hided cattle and 45 percent black-hided cattle. To cure the breach, the broker offered simply to take back the black-hided cattle, but not to replace them with the appropriate number of red-hided cattle. On similar facts, an appellate court held that the offered cure was inadequate. Even had the broker implemented the cure, the delivery would not have conformed to the contract. The rancher would have wound up with substantially fewer than the 150 cattle that he contracted for. [ See Albrecht v. Fettig , 932 N.W.2d 331 (Neb. Ct. App. 2019).] 6. Giving the Seller a Further Reasonable Time beyond the Time for Performance to Effectuate a Cure Sometimes, the buyer will reject a nonconforming tender, even though the seller had reasonable grounds for believing that the goods would be acceptable to the buyer—with or without a money allowance. Here, if the seller seasonably notifies the buyer, then the seller has a further reasonable time, beyond the time for performance, to give a substitute, conforming tender. This rule’s purpose is to afford the seller some protection from injustice in case of a surprise rejection by the buyer. [U.C.C. § 2-508(2), cmt. 2 (1951).] a. Whether Seller Has Reasonable Grounds to Believe Goods Will Be Acceptable Of course, whether the seller has reasonable grounds to believe the goods will be acceptable depends on the total circumstances, including any course of performance,
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