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1 George Mason School of Law Contracts II Warranties This file may be downloaded only by registered students in my class, and may not be shared by them F.H. Buckley fbuckley@gmu.edu
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Next day Finish Warranties Mistake: 709-47 2
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3 Conditions and Warranties Promises ConditionsWarranties Election Forfeiture DamagesDamages only
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Warranties With a warranty a seller assumes a risk as to the product The prior question is whether the risk should be born by the seller or the buyer 4
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5 Let’s say seller sells a whizbang $999.99 at Home Depot
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6 The whizbang 50% chance of a whiz It might go whiz
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7 The whizbang 50% chance of a whiz, 50% of a bang It might go whiz … or it might go bang …
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8 The expected monetary value of an accident is p*L Evaluating risk: Expected Values
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9 The expected monetary value of an accident is p*L where p is the probability of occurrence And L is the cost of the accident on occurence Evaluating risk: Expected Values
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10 So the expected monetary value for an accident with a 50 percent probability of a loss of $250 is $125 Evaluating risk: Expected Values
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11 The least cost risk avoider, in contract and tort law Joined at the hip historically with the action on the case Assigning risk
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12 Seller sells a whizbang to Buyer for $1,000, with no warranties as to bangs The Least-Cost Risk Avoider
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13 Seller sells a whizbang to Buyer for $1,000, with no warranties as to bangs Assume that the expected cost of a bang is $125 The Least-Cost Risk Avoider
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14 Seller sells a whizbang to Buyer for $1,000, with no warranties as to bangs Assume that the expected cost of a bang is $125 So Buyer has a whizbang at a cost of (1,000 + 125 =) $1125 The Least-Cost Risk Avoider
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15 Seller sells a whizbang to Buyer for $1,000, with no warranties as to bangs Assume that the expected cost of a bang is $125 Assume that seller (but not Buyer) can eliminate this risk at a cost of $100 The Least-Cost Risk Avoider
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16 Seller sells a whizbang to Buyer for $1,000, with no warranties as to bangs Assume that the expected cost of a bang is $125 Seller (but not Buyer) can eliminate this risk at a cost of $100 Do we see a Coasian bargain here? How will the parties assign the risk? The Least-Cost Risk Avoider
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17 Seller sells a whizbang to Buyer for $1,000, with no warranties as to bangs Assume that the expect cost of a bang is $125 Seller (but not Buyer) can eliminate this risk at a cost of $100 Seller is the least-cost risk avoider and buyer will pay seller to assume the risk The Least-Cost Risk Avoider
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18 Assume that the expect cost of a bang is $125 Seller (but not Buyer) can eliminate this risk at a cost of $100 How will the parties assign the risk? Buyer will pay seller to assume the risk And what will this do to the purchase price? The Least-Cost Risk Avoider
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19 Assume that the expect cost of a bang is $125 Seller (but not Buyer) can eliminate this risk at a cost of $100 How will the parties assign the risk? Buyer will pay seller to assume the risk What is the range of prices between which the parties will bargain? The Least-Cost Risk Avoider
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20 Assume that the expect cost of a bang is $125 Seller (but not Buyer) can eliminate this risk at a cost of $100 How will the parties assign the risk? Buyer will pay seller to assume the risk Seller will not accept less than $100 and (risk-neutral) buyer will not pay more than $125 The Least-Cost Risk Avoider
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21 Assume that the expect cost of a bang is $125 Seller (but not Buyer) can eliminate this risk at a cost of $100 Let’s say that seller offers a warranty for the risk at a price of $110 Buyer pays an extra $110 and saves $125 The Least-Cost Risk Avoider
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22 How it looks to buyer: No warranty: 1,000 + 125 = $1125 With the warranty: $1110 The Least-Cost Risk Avoider
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23 Seller sells a whizbang to Buyer for $1,000, with no warranties as to bangs Assume that the expected cost of a bang is $125 Buyer (but not Seller) can eliminate this risk at a cost of $100 What happens now? Let’s flip this Buyer as Least-Cost Risk Avoider
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24 Seller sells a whizbang to Buyer for $1,000, with no warranties as to bangs Assume that the expected cost of a bang is $125 Buyer (but not Seller) can eliminate this risk at a cost of $100 Buyer will spend $100 to eliminate a risk with an EMV of $125 Let’s flip this Buyer as Least-Cost Risk Avoider
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25 Buyer’s options; Take no care: 1000 + 125 = $1125 Take care: 1000 + 100 = $1100 Let’s flip this Buyer as Least-Cost Risk Avoider
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26 The parties will seek to assign the risk to the party who can most efficiently eliminate it. The Least-Cost Risk Avoider
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27 The parties will seek to assign the risk to the party who can most efficiently eliminate it. An application of the Coase Theorem If bargaining is costless, does it matter how the law assigns the risk? The Least-Cost Risk Avoider
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28 The parties will seek to assign the risk to the party who can most efficiently eliminate it. An application of the Coase Theorem And if bargaining isn’t costless? The Least-Cost Risk Avoider
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29 You’re a judge. You have a pretty good idea who the least-cost risk avoider is. The parties have left the question of risk silent in their contract. How do you assign the risk? The Least-Cost Risk Avoider
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30 “Mimicking the market” The Least-Cost Risk Avoider
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31 Same example. But now neither party can eliminate the risk for less than $125. On whom should the risk fall? Does it matter? A second way of thinking about Least-Cost Risk Avoiders
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32 Same example. But now neither party can eliminate the risk for less than $125. Suppose one party is in a better position to value the loss? A second way of thinking about Least-Cost Risk Avoiders
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33 Same example. But now neither party can eliminate the risk for less than $125. Suppose one party is in a better position to value the loss? As between a manufacturer and a consumer, who is this likely to be? A second way of thinking about Least-Cost Risk Avoiders
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34 Suppose that seller is a large corporation and buyer is an impecunious consumer. Does that make a difference? A third way of thinking about Least-Cost Risk Avoiders
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35 Suppose that seller is a large corporation and buyer is an impecunious consumer. Does that make a difference? Do risk preferences matter? A third way of thinking about Least-Cost Risk Avoiders
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Are you an EMV’er? An EMV’er always selects the payoff with the highest expected monetary value (p*O) 36
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Are you an EMV’er? An EMV’er always selects the payoff with the highest expect monetary value (p*O) Suppose I offer you a lottery ticket with a.5 probability of 0 and a.5 probability of $2. Would you pay me 50¢ for the ticket? 37
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Are you an EMV’er? An EMV’er always selects the payoff with the highest expect monetary value (pO) Suppose I offer you a lottery ticket with a.5 probability of 0 and a.5 probability of $2. Would you pay me 50¢ for the ticket? EMV =.5($2) = $1.00 38
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Are you an EMV’er? An EMV’er always selects the payoff with the highest expect monetary value (pO) Suppose I offer you a lottery ticket with a.5 probability of 0 and a.5 probability of $10,002. Would you pay me $5,000.50 for the ticket? 39
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Are you an EMV’er? An EMV’er always selects the payoff with the highest expect monetary value (pO) Suppose I offer you a lottery ticket with a.5 probability of 0 and a.5 probability of $10,002. Would you pay me $5,000.50 for the ticket? EMV =.5($10,002) = $5,001 40
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41 Three kinds of people EMV’ers are risk neutral They always take the gamble with the highest EMV
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42 Three kinds of people EMV’ers are risk neutral Most people are risk averse They’ll pass on some opportunities with a positive EMV
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43 Three kinds of people EMV’ers are risk neutral Most people are risk averse Risk lovers are risk prone They will accept some gambles with a negative EMV
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44 Recall what we said about utility Utility is the economist’s measure of well-being (cf. utilitarianism) Ordinal Utility measures preferences without weighing them (first, second, third are ordinal numbers) Cardinal Utility (Bentham’s “utils”) weighs utility (one, two, three are cardinal numbers)
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45 Cardinal Utility plotted against EMV Utility $EMV For EMV’ers, utility is linear with money
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46 Cardinal Utility Utility $EMV For the risk averse, the marginal utility of money declines (more money generates increasingly smaller increases in utility).
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47 Cardinal Utility Start with someone with 1,000 Utility $ 1,000
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48 Cardinal Utility Would he be willing to take a fair bet of 250? [.5(0) +.5(250)] Utility $ 1,000
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49 Cardinal Utility Would he be willing to bet 250? Utility $ 1,0007501250
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50 Cardinal Utility Mapping this into utilities Utility $ 1,0007501250
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51 Cardinal Utility Mapping this into utilities Utility $ 1,0007501250
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52 Cardinal Utility What is the utility if he rejects the gamble? Utility $ 1,0007501250
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53 Cardinal Utility What is his expected utility if he takes the gamble? Utility $ 1,0007501250
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54 Cardinal Utility What is his expected utility if he takes the gamble? Utility $ 1,0007501250
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55 Cardinal Utility So there is a utility loss from the gamble Utility $ 1,0007501250
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56 Are there policy implications? So there is a utility loss from the gamble Utility $ 1,0007501250
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57 No utility loss for an EMV’er who takes a fair bet Utility $EMV For EMV’ers, utility is linear with money
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58 Would you assume that firms are risk-neutral and consumers risk averse as to a loss of $250? This suggests a third way of thinking about Least-Cost Risk Avoiders
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59 There is a 50 percent probability of a loss of $250 Same example. But now neither party can eliminate the risk for less than $125 Would you assume the firms are risk- neutral and consumers risk averse? Would you expect the risk to be born by the wealthier party? This suggests a third way of thinking about Least-Cost Risk Avoiders
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Further readings? http://cyber.law.harvard.edu/bridge/ LawEconomics/risk.htm 60
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61 Suppose that seller sells 10,000 whizbangs and buyer buys only one? Does that make a difference? Now--A fourth way of thinking about Least-Cost Risk Avoiders
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Probability distribution for buyer 62 $EMV 7501,000 %.5 Mean = 875
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Probability distribution for seller of 60 whizbangs 63 875 % 1.0
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Probability distribution for seller of 200 whizbangs 64 875 % 1.0 All Curves have the same mean value ($875) but different risk (dispersion from the mean).
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Probability distribution for seller of 10,000 whizbangs 65 $EMV 875 % 1.0
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The “insurance idea” in tort and contract law 66
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67 1.Where one party is better able to reduce the risk or the harm 2.Where one party is better able to value the loss 3.Assuming risk aversion, where one party is wealthier than the other 4.Assuming risk aversion, where one party is a better insurer because he can diversify the risk Four kinds of Least-Cost Risk Avoiders
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68 There’s something called State Farm… Who then would you expect to bear a loss, as between: Seller (manufacturer) Buyer (self-insurance) Third party insurance company Let’s add the possibility of third party insurance
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69 Who would you expect to bear the loss for: Liability for a faulty transmission? Emotional Distress World War III? Three kinds of Least-Cost Risk Avoiders
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Express and Implied Terms What does UCC § 2-313 require before a statement becomes a warranty? 70
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Sessa v. Riegle at 660 Was there a finding that the horse that was sold was defective? 71 Riegle Sessa
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Sessa v. Riegle Was there a finding that the horse that was sold was defective? Tendenitis might have resulted from the drive, or from unclean conditions in Sessa’s stable In the later case, buyer took the risk 72
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Sessa v. Riegle Was there a finding that the horse that was sold was defective? Tendenitis might have resulted from the drive, or from unclean conditions in Sessa’s stable In the former case, who took the risk? UCC §§ 2-501(1)(a), 2-504 73
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Sessa v. Riegle Why not within UCC §2-313? 74
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Sessa v. Riegle Why not within UCC §2-313 Not “an affirmation of fact” Statements of opinion: UCC §2-313(2) Mere puffs 75
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Sessa v. Riegle Why not within UCC §2-313 “an affirmation of fact” Statements of opinion: UCC §2-313(2) Mere puffs A special rule for horse traders? “horses are fragile creatures” 76
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Sessa v. Riegle Why not within UCC §2-313 “an affirmation of fact” Statements of opinion: UCC §2-313(2) Mere puffs Is there never a warranty in such cases? 77
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Sessa v. Riegle Why not within UCC §2-313 “an affirmation of fact” Statements of opinion: UCC §2-313(2) Mere puffs Is there never a warranty in such cases? Frederickson at 665 McNair at 665 Flood at 663 78
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Royal Business Machines at 665 79
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Royal Business Machines at 665 Representations: Copy machine… Was of high quality Frequency of repair was very low Would remain so Will bring buyer substantial profits 80
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Royal Business Machines Copy machine: Machines were tested 81
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Royal Business Machines Copy machine: Machines will not cause fire 82
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83 George Mason School of Law Contracts II Warranties This file may be downloaded only by registered students in my class, and may not be shared by them F.H. Buckley fbuckley@gmu.edu
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Next day Finish Warranties Mistake up to Scott 718 84
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85 1.Where one party is better able to reduce the risk or the harm 2.Where one party is better able to vale the loss 3.Assuming risk aversion, where one party is wealthier than the other 4.Assuming risk aversion, where one party is a better insurer because he can diversify the risk Four kinds of Least-Cost Risk Avoiders
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IncentivesInsurance 1Risk or Harm Avoiders 2Lower Information Costs 3Differential Risk Aversion 4Risk Diversification 86
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Express and Implied Terms What does UCC § 2-313 require before a statement becomes a warranty? 87
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Express and Implied Terms What do each of these exclude? Affirmation of fact Relates to the goods Part of the basis of the bargain 88
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Express and Implied Terms Cf. UCC § 2-313(1)(b) Description of the goods Part of the basis of the bargain 89
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Contract and Tort The abolition of privity of contract in UCC §§ 2-313A and 2-313B Cf Prosser at 672 90
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Specificity: Searls v. Glasser at 668 “recession resistant”? Keith: “sure-footed seaworthiness”? 91
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Implied Warranties Merchantability: 2-314 Fitness: 2-315 Title: 2-312 92
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Merchantability Flippo at 669 Implied warranty in UCC 2-314 93
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Merchantability What is “merchantability”? Cf. UCC § 2-314(2) 94
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Merchantability Qu. expected impurities Cf. Coffer at 671 95
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Merchantability I sell you a car whose transmission fails six months later? What’s the issue? 96
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Merchantability I sell you a car whose transmission fails six months later? Qu. Lapse of time UCC § 2-314, cmt. 13 97
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Fitness for Purpose Merchantabilty: UCC § 2-314 Fitness: UCC § 2-315 98
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Implied UCC Warranties I sell you a car which proves unsuitable for off-terrain driving 99
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Fitness: UCC § 2-315 How is this different from merchantability? 100
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Fitness: UCC § 2-315 How is this different from merchantability? What more is needed? Seller knows or has reason to know Particular purpose Buyer’s reliance 101
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Fitness: UCC § 2-315 Why no warranty in Lewis and Sims at 674? 102
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Implied Warranties What’s the problem in Gulash at 675? 103
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Warranty of Workmanlike Performance Construction and services contracts Could any contractor be thought to resist such a duty? 104
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Exemption Clauses UCC §§ 2-314, 2-315: “Unless excluded or modified” UCC § 2-316 What does (1) mean? 105
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Exemption Clauses Pelc v. Simmonds at 676 106 1978 Sunbird
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Exemption Clauses Pelc v. Simmonds at 676 Who was the seller 107
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Exemption Clauses Pelc v. Simmonds at 676 Oral statements by Simmons Only thing wrong is the a/c Good little car, above average 108
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Exemption Clauses Pelc v. Simmonds at 676 History of the car 109
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Exemption Clauses Pelc v. Simmonds Oral statements by Simmons Only thing wrong is the a/c Good little car, above average “As is” clause. UCC § 2-316(3)(a) 110
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Exemption Clauses Pelc v. Simmonds Oral statements by Simmons Only thing wrong is the a/c Good little car, above average “As is” clause. UCC § 2-316(3)(a) Should UCC § 2-316(1) have been invoked? 111
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Exemption Clauses What if it had been proven that seller knew it was a clunker? Morris at 679 112
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Exemption Clauses The “doomed” car 113
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Exemption Clauses Weisz v. Parke-Bernet at 680 Can you spot the fake Van Gogh? 114
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Weisz v. Parke-Bernet Why was the exemption clause ignored? 115
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Weisz v. Parke-Bernet What is a “Raoul Dufy”? 116
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Weisz v. Parke-Bernet Might a breach be so fundamental as to wipe out the contract? Suisse Atlantique, [1966] 2 All E.R. 61 (H.L.) 117
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118 George Mason School of Law Contracts II Warranties This file may be downloaded only by registered students in my class, and may not be shared by them F.H. Buckley fbuckley@gmu.edu
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Next day Mistake 119
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Substantial Performance vs. Perfect Tender Sales Law: Perfect Tender Rule UCC § 2-601 Non-sales Law: Substantial Performance Restatement § 229 (no disproportionate forfeiture unless “material” event) Restatement § 237 (a condition that “no uncured material failure 120
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Substantial Performance in Non-sales Law Non-sales Law: Substantial Performance Materiality defined in Restatement § 241 121
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122 Substantial Performance Jacob & Youngs v. Kent at 65 122
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Substantial Performance in Jacob & Young 123
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124 Substantial Performance Jacob & Youngs v. Kent at 65 Was there a breach? How serious was it? 124
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125 Substantial Performance Jacob & Youngs v. Kent What remedy does the Π seek? 125
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126 Substantial Performance What are Dependent vs. Independent Promises, and why did it matter? 126 Benjamin Cardozo
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127 Substantial Performance What are Dependent vs. Independent Promises? Dependent promises as “conditions” Tender of price and of delivery under Article 2 Independent promises as mere “promises” 127
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128 Substantial Performance What are Dependent vs. Independent Promises? Dependent promises as “conditions” Tender of price and of delivery under Article 2 Independent promises as mere “promises” I know Cardozo called it a “promise” but I’m going to call it a “warranty”. 128
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129 Conditions and Warranties Promises ConditionsWarranties (Dependent Promises) (Independent Promises) Forfeiture Damages Damages only
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130 Substantial Performance So how does one tell whether it’s a condition or warranty? 130
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131 Substantial Performance How does one tell? “Intention not otherwise revealed may be presumed to hold in contemplation the reasonable and probable.” 131
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132 Substantial Performance How does one tell? Do considerations of “equity and fairness” get one to the same place? 132
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Substantial Performance Could the parties to a building contract bargain for perfect tender? “This is not to say that the parties are not free …” 133
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Substantial Performance Could the parties to a building contract bargain for perfect tender? Did they in Jacob & Young? 134
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Substantial Performance Could the parties to a building contract bargain for perfect tender? Did they in Jacob & Young? Could you draft a clause that would have given Kent a right to rescind? 135
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Substantial Performance Could the parties to a building contract bargain for perfect tender? Did they in Jacob & Young? Would the parties have agreed to such a clause? Why not? 136
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137 Substantial Performance Wait a minute—what about Coasian bargaining? 137
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138 Substantial Performance Wait a minute—what about Coasian bargaining? Assume: Value of house with Reading pipe is $77,000 Value of house with Cohoes pipe is $76,900 Cost of replacement is $10,000 138
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139 Substantial Performance Assume: Value of house with Reading pipe is $77,000 Value of house with Cohoes pipe is $76,900 Cost of replacement is $10,000 So what would a Coasian bargain look like, given those numbers? 139
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140 Substantial Performance Assume: Value of house with Reading pipe is $77,000 Value of house with Cohoes pipe is $76,900 Cost of replacement is $10,000 So will the pipe be replaced? 140
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141 Substantial Performance Assume: Value of house with Reading pipe is $77,000 Value of house with Cohoes pipe is $76,900 Cost of replacement is $10,000 Will this satisfy the builder? 141
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Substantial Performance Is Grun Roofing at 682 consistent with Jacob and Youngs? 142
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Substantial Performance Grun Roofing What is substantial performance for a roof? 143
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Substantial Performance Grun Roofing What would it cost the owner to install a completely new roof? 144
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Substantial Performance Grun Roofing What would it cost the owner to install a completely new roof? How did the court arrive at damages of $122? 145
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Substantial Performance Remedies in Plante v. Jacobs at 688 Cost of repair or diminished value? What is the proper measure of Πs loss? 146
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Substantial Performance Plante v. Jacobs at 688 Cost of repair or diminished value? Does the latter undercompensate? 147
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Substantial Performance Plante v. Jacobs at 688 Cost of repair or diminished value? Does the former open the door to opportunism? 148
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Haymore v. Levinson at 685 Was there a breach? 149
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Haymore v. Levinson at 685 Was there a breach? The two standards? 150
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Grun Roofing vs. Haymore Personal taste or fancy vs. operative fitness “mere taste may be controlling” in the former case 151
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Willful deviations Cf Grun Roofing at 684 “Contractor must have intended to comply” Material Movers at 687 Can you justify this on efficiency grounds? 152
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153 1.Where one party is better able to reduce the risk or the harm 2.Where one party is better able to value the loss 3.Assuming risk aversion, where one party is wealthier than the other 4.Assuming risk aversion, where one party is a better insurer because he can diversify the risk Recall the Four kinds of Least-Cost Risk Avoiders
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Four kinds of Least-Cost Risk Avoiders IncentivesInsurance 1Risk or Harm Avoiders 2Lower Information Costs 3Differential Risk Aversion 4Risk Diversification 154
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155 Warranties also signal product quality The informational asymmetry between seller and buyer Now: Warranties as a signaling strategy
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156 Warranties also signal product quality As between two sellers, one of whom offers a warranty and the other of whom doesn’t, you have more information about the former Recall the Four kinds of Least-Cost Risk Avoiders
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Warranties as a signalling strategy If a dealer offers you an extended warranty at a premium price, why does Consumers Reports tell you to reject this? 157
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Warranties as a signalling strategy If a dealer offers you an extended warranty at a premium price, why does Consumers Reports tell you to reject this? The offer of the extended warranty gives you the information, even if you don’t take it up 158
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Warranties as a signalling strategy If a dealer offers you an extended warranty at a premium price, why does Consumers Reports tell you always to reject this? Absence of screening and competitive pricing? 159
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Warranties as a signalling strategy If a dealer offers you an extended warranty at a premium price, why does Consumers Reports tell you always to reject this? Judgment biases? 160
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Warranties as a signalling strategy If a dealer offers you an extended warranty at a premium price, why does Consumers Reports tell you always to reject this? Adverse selection problems? 161
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Adverse selection: Flood insurance and Lower Town 162 Flood insurance isn’t such a good deal in la ville en haut, and extended car warranties are such a good deal for low maintenance drivers
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Can someone explain this to me? 163 Do we think that Sean Connery drinks Japanese Scotch?
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If a warranty can operate as a signal, what about a breach? 164
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Why did Van Halen ban brown M & Ms? 165
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If a warranty can operate as a signal, what about a breach? An argument for the perfect tender rule? 166
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167 George Mason School of Law Contracts II Warranties This file may be downloaded only by registered students in my class, and may not be shared by them F.H. Buckley fbuckley@gmu.edu
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Next day Finish Mistake Excuse (plus Scott 84-93) Frustration 168
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Substantial Performance vs. Perfect Tender Sales Law: Perfect Tender Rule UCC § 2-601 Non-sales Law: Substantial Performance Restatement § 229 (no disproportionate forfeiture unless “material” event) 169
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170 Presumption against forfeiture in non- sales contracts Promises ConditionsWarranties Perfect TenderSubstantive Performance Forfeiture Damages Damages only
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171 Perfect Tender in Sales Law Promises ConditionsWarranties Perfect TenderSubstantive Performance Forfeiture Damages Damages only
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But what Sales Law gives the buyer, it also taketh away Buyer gets a perfect tender rule, BUT: Modification, waiver, estoppel, Seller’s right to cure 172
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Buyer’s Remedies in the UCC 2-601 Perfect Tender required Conforming goods 2-106 173
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Buyer’s Remedies in the UCC 2-601 Perfect Tender required Accept2-606Reject 2-602 174
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Buyer’s Remedies in the UCC 2-601 Perfect Tender required Accept2-606Reject 2-602 Damages 2-714, 2-715 175
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Buyer’s Remedies in the UCC 2-601 Perfect Tender required Accept2-606Reject 2-602 Damages 2-714, 2-715Revocation of Acceptance 2-608 176
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Buyer’s Remedies in the UCC 2-601 Perfect Tender required Accept2-606Reject 2-602 Damages 2-714, 2-715Revocation of Acceptance 2-608 Cancel 2-711, 2-106(4) Damages 2-711, 2-713 177
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Buyer’s Remedies in the UCC 2-601 Perfect Tender required Accept2-606Reject 2-602 Action for price paid 2-711 Incidental Damages 2-711, 2-713 Cover plus damages 2-711, 2-712 178
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Cure by Seller 2-601 Perfect Tender required Accept2-606Reject 2-602 Cure 2-508Don’t cure 179
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Seller’s Remedies Goods not deliveredGoods delivered Withhold delivery 2-703 Stoppage in transitu 2-705 Damages 2-703, 2-708 180
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Seller’s Remedies Goods not deliveredGoods delivered Action for the price 2-709 181
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Opportunism and Perfect Tender? The problem of buyer opportunism is addressed by the seller’s right to cure 182
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Opportunism and Perfect Tender? TW Oil at 691 Why did buyer reject? 183
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Opportunism and Perfect Tender? TW Oil at 691 Why did buyer reject? 25% price drop 184
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Opportunism and Perfect Tender? 185
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Opportunism and Perfect Tender? TW Oil: What was the breach and was the seller aware of it? 186
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Opportunism and Perfect Tender? TW Oil: Why did buyer reject? Cure: 2-508 When was delivery to take place? 187
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Opportunism and Perfect Tender? TW Oil: Why did buyer reject? Cure: 2-508 When was the substitute delivery to occur? 188
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Opportunism and Perfect Tender? Cure after delivery date: 2-508(2) Seasonable notice Reasonable time Seller had reasonable grounds to believe would be acceptable, with or without money allowance 189
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Opportunism and Perfect Tender? TW Oil: Why did buyer reject? Cure: 2-508 If he would cure, must seller know that tender will be non-conforming? Nordstrom on Sales Cf. footnote 40 190
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Opportunism and Perfect Tender? Could cure rights permit a seller to act opportunistically? 191
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Opportunism and Perfect Tender? What if first tender is junk? Ramirez at 697: an unconditional right to cure before the delivery date 192
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Opportunism and Perfect Tender? If the delivery date has passed, in what way might this be unfair to the buyer? 193
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Opportunism and Perfect Tender? If the delivery date has passed, in what way might this be unfair to the buyer? The delay by itself? Seller’s incentive problem 194
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Ramirez at 695 Delivery scheduled for August 3 Trial Court finds rejection on Aug. 14 195
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Why no cure permitted in Ramirez? After rejection, seller still has a right to cure under 2-508(2)
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Why no cure permitted in Ramirez? Delivery scheduled for August 3 Rejection on Aug. 14 Did sellers effect a cure? 197
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Why no cure permitted in Ramirez? Delivery scheduled for August 3 Rejection on Aug. 14 Did sellers effect a cure? Did buyers accept the goods in 2- 606? 198
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Why no cure permitted in Ramirez? Delivery scheduled for August 3 Rejection on Aug. 14 Did sellers effect a cure? Did buyers accept the goods in 2- 606? Semble not, so no need to revoke acceptance 199
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Why no cure permitted in Ramirez? Delivery scheduled for August 3 Rejection on Aug. 14 Did sellers effect a cure? Can the buyer revoke acceptance for a trivial defect? 200
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Can 2-508 be waived by seller? Qu. Consumer goods where seller specifies “goods satisfactory or money refunded” 201
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When is buyer opportunism most a problem, and when are cure rights most needed? 202
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When is buyer opportunism most a problem, and cure rights most needed? Idiosyncratic, custom-made goods 203
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When is buyer opportunism most a problem, and cure rights most needed? Volatile markets 204
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How might sellers behave opportunistically, given cure rights? 205
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How might sellers behave opportunistically, given cure rights? Sloppiness as to delivery? Sloppy repair: Ramirez, Zabriskie at 702 206
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