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contractually assume the risk of the contingency. Examples include war, embargo, natural disasters, and unforeseen loss of major supply sources, but not garden-variety cost increases. This delay or failure may also be excused if good-faith compliance with a foreign or domestic government regulation renders performance impracticable. The seller must seasonably notify the buyer of the delay or nondelivery. 1. Impracticability Only Partially Affecting Seller’s Ability to Perform Special rules apply if the impracticability only partially affects the seller’s ability to perform. Here, the seller must allocate both delivery and production among her customers. At the seller’s option, she may include (1) regular customers, even those not under contract at the time, and (2) the seller’s own future-manufacture requirements. The seller may implement the allocation in any fair and reasonable manner but must do so in good faith and must seasonably notify the buyer of the estimated quantity to be made available to the buyer.
VI. Warranties in UCC Article 2
Article 2 both acknowledges express warranties and imposes implied warranties.
Express Warranties Article 2 articulates three distinct ways for the seller to create an express warranty, though no intent to create a warranty or formal words of guarantee are required:
an affirmation of fact or promise, a description of the goods, or a sample or model.
1. Express Warranty by Affirmation of Fact or Promise An affirmation of fact or promise from the seller to the buyer creates an express warranty if (1) it relates to the goods ( i.e. , relates to the goods’ type, description, or quality) and (2) becomes part of the basis for the bargain. That warranty, in turn, is that the goods will conform to the affirmation or promise. 2. Express Warranty by Description of the Goods A description of the goods creates an express warranty, provided the description is part of the basis of the bargain. The warranty, in turn, is that the goods will conform to the description. Examples include technical specifications, blueprints, representations about the strength of materials, statements on product labels, and so on.
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