Sales and Leases | 25
Generally, unless unreasonable in a given case, warranties must be construed consistently with each other and as cumulative. If that construction is unreasonable, then the parties’ intent determines which warranty prevails. 1. Rules to Determine the Parties’ Intent Concerning Conflicting Warranties If the parties’ intent determines which warranty prevails, then unless unreasonable or inconsistent in the circumstances, the following rules normally apply: exact or technical specifications prevail over both inconsistent samples or models and inconsistent general descriptive language; a sample taken from a bulk in existence prevails over inconsistent general descriptive language; an express warranty displaces the implied warranty of merchantability, to the extent of a conflict; and the implied warranty of fitness for a particular purpose prevails over an express warranty, to the extent of a conflict.
VII. Remedies
Part 7 of Article 2 sets forth most of the seller’s and buyer’s remedies, though some remedial provisions appear elsewhere in Article 2.
Seller’s Remedies on the Buyer’s Insolvency If the seller discovers that the buyer is insolvent, the seller may normally (1) refuse delivery unless the buyer pays in cash, including payment for any goods previously delivered under the same contract and (2) stop delivery under § 2-705. If the seller learns that the buyer has received goods on credit while insolvent, the seller may reclaim the goods (if identified and in the buyer’s possession) within 10 days after the buyer receives them (or longer if the buyer made a written misrepresentation of solvency to the seller within three months before delivery). In either case, the seller must discover the buyer’s insolvency after contracting. Different rules apply if the buyer is in bankruptcy. A seller who reclaims the goods loses all other remedies concerning those goods. Liquidated Damages Generally, a liquidated-damages provision sets the remedy for a party’s breach at a fixed amount of money. In Article 2, a liquidated-damages clause is void as a penalty unless reasonable considering (1) the anticipated or actual harm that the breach caused, (2) the difficulty of proving loss, and (3) how inconvenient or infeasible it is to procure another adequate remedy. That is, the
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