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the goods’ utility for the purposes to which similar goods are put, considering the goods’ operational efficiency and other relevant factors; the cost to repair the nonconformities; and the seller’s willingness to cure the nonconformity seasonably.
[ See Allen v. Rouse Toyota Jeep, Inc. , 398 S.E.2d 64 (N.C. Ct. App. 1990).]
Examples : (1) A consumer bought a car from a dealer and accepted it. A short time later, the consumer noticed that when she pressed the accelerator, the car would lag, bog down, and hesitate. The consumer took the car to the dealership at least 15 times to repair the issue, but the dealer’s efforts to fix the problem proved fruitless. Thus, the consumer sought to revoke acceptance, return the car, and obtain either a refund or a replacement vehicle. On these facts, a court could find that the defect in the car substantially impaired the car’s value to the consumer. Though the consumer could still use the car, the lagging and hesitation were at best a substantial inconvenience, and at worst, they could have posed a safety issue. [ Adapted from Allen v. Rouse Toyota Jeep, Inc. , 398 S.E.2d 64 (N.C. Ct. App. 1990).] (2) An industrialist contracted to buy an industrial brake press from a manufacturer. After the industrialist accepted delivery of the press, it stopped working. Over three weeks, the industrialist incurred hundreds of man-hours and thousands of dollars in costs to work with the manufacturer’s employees (who were not always prepared to work) and a third-party consultant to repair the press. Despite these efforts, the press never functioned properly. On similar facts, a state appellate court found that the defect in the press substantially impaired the press’s value. [ See H.A.S. of Fort Smith, LLC v. J.V. Mfg., Inc. , No. CA 03-1445, 2004 WL 2102009 (Ark. Ct. App. 2004).] b. Buyer’s Reasonable Assumption of Cure and Lack of a Seasonable Cure from Seller A buyer’s reasonable assumption of a cure may, of course, derive from the seller’s express or implied assurances of cure—for instance, express or implied promises to repair or replace defective goods. That reasonable assumption may also arise from the circumstances, including any relevant course of performance, course of dealing, or usage of trade. Of course, if the buyer does accept goods on the reasonable assumption of a cure, the buyer must give the seller a chance to cure. The cure contemplated here includes, but is not limited to, that discussed in Cure, supra . The assurance of cure may also consist of any offer to fix the nonconformity in the typical back-and-forth communications between the parties. [ See 2 Hawkland UCC Series § 2-608:1, Westlaw (database updated June 2021).]
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