Sales and Leases | 154
Seller’s Tender of Delivery and Shipment of Goods In the broadest sense, tender, from the seller’s perspective, means making conforming goods available to the buyer and affording the buyer notice that the goods are available. In the words of Article 2, the seller must “put and hold conforming goods at the buyer’s disposition and give the buyer any notification reasonably necessary to enable him to take delivery.” [U.C.C. § 2-503(1) (1951).] The agreement and the rules in Article 2 will determine the place, time, and manner of tender, though § 2-503 does set forth particular rules in this regard. Also, special rules apply to shipment and destination contracts. [U.C.C. § 2-503(1) (1951); 2 Hawkland UCC Series § 2-503:1, Westlaw (database updated June 2021).] 1. Effect of Buyer’s and Seller’s Tender Absent contrary agreement, the buyer’s tender of payment is a condition to any duty on the seller’s part to complete or tender delivery. Conversely, the seller’s tender of delivery is a condition to the buyer’s duty of acceptance and (unless otherwise agreed) the buyer’s duty to pay for the goods. Thus, in theory, if neither party tenders performance, then neither party has breached the contract (subject to the rules on anticipatory repudiation, discussed below). The seller’s proper tender, at least of conforming goods, entitles her to acceptance and to payment as stated in the contract. [U.C.C. §§ 2-507(1), 2-511(1) (1951); 2 Hawkland UCC Series § 2-507:1, Westlaw (database updated June 2021); Anticipatory Repudiation, Retracting an Anticipatory Repudiation, infra .] a. Conditional Delivery and Reclamation If payment is due on delivery of the goods or documents, and the seller demands such payment, the buyer’s rights against the seller to retain or dispose of the goods or documents are conditioned on the buyer’s making due payment. Here, if the buyer fails to make due payment ( e.g. , because a check is dishonored), the seller has the right to reclaim the goods. But if the seller waits too long to demand the goods, she may be found to have waived or otherwise relinquished her right of reclamation. [U.C.C. § 2-507(2) (1951); 2 Hawkland UCC Series § 2-507:2, Westlaw (database updated June 2021).] 2. Time of Tender and Safekeeping of Goods The seller must tender delivery at a reasonable hour. If the seller tenders goods, the seller must keep the goods available for a length of time reasonably necessary to enable the buyer to assume possession of the goods. The buyer, for her part, must supply facilities that are reasonably furnished to receive the goods. [U.C.C. § 2-503(1) (1951).]
3. Seller’s Tender Obligations in a Shipment Contract
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