Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com
In a comment to my previous article concerning character evidence, I was asked to write about the distinction concerning buyer and seller remedies under the UCC. This is quite a bit of information, so I will divide the content into two separate articles. This article will focus on buyer’s remedies, and the next article will focus on seller’s remedies.
Let’s first discuss buyer’s right to reject non-conforming goods. When the buyer receives goods from the seller, if those goods do not conform to the specifications as set forth in the contract, buyer can, under some circumstances, reject the goods, and then either cancel the contract or sue the seller.
Let’s assume buyer has rejected non-conforming goods tendered by the seller. The seller is then given the option within the time originally provided for performance, to cure the defect by giving reasonable notice of intention to cure, and making a new tender of conforming goods. If the buyer had accepted the goods, rather than rejected, and those goods turn out to be non-conforming, the buyer is not entirely out of luck. The buyer can still revoke his acceptance if the defect in the goods substantially impair their value, and buyer accepted the goods on the reasonable belief that the defect would be cured (and it was not cured); or if the buyer accepted the goods because of the difficulty of discovering the defects or because the seller assured buyer that the goods conformed to the contract. So, remember to consider both options that buyer has in regards to non-conforming goods: rejecting the goods, or revoking the acceptance of those goods.
Another option for buyer is to replevy identified goods. All this means is that if the buyer has already tendered full payment and the seller becomes insolvent within 10 days after receiving the buyer’s first payment, or if the goods were purchased for personal, family, or household purposes, then the buyer will be able to obtain those goods from seller, provided that those goods have been identified (ie, specific and ascertained goods currently existing).
Finally, the court may order specific performance, which will again allow the buyer to obtain the goods from seller, but in such a case, it will not be a requirement that the goods be identified; it will instead suffice if the goods are unique.
Now, let’s move on to damages. Let’s assume that the buyer has properly rejected non-conforming goods, or has revoked his acceptance of non-conforming goods. The buyer will be entitled to the difference between the contract price, and the market price or cost of buying replacement goods. The purpose here is to put the buyer in the position he would have been in had the seller tendered conforming goods. Buyer is also entitled to incidental and consequential damages, less expenses saved as a result of seller’s breach.
Another possibility is that the buyer has decided to accept goods, even though those goods do not conform to the contract. In such a situation, the buyer is entitled to the difference between the value of the goods accepted, and the value they would have had if they had conformed to the contract, plus incidental and consequential damages. Buyer must remember to notify seller as to the non-conforming nature of the accepted goods, otherwise buyer will lose his ability to collect damages for the accepted goods.
As always, should you have any questions at all, or comments about any of the information in the article, feel free to leave them in the comments section of this post, so that I can address them.
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