Bartus v. Riccardi
4 U.C.C. Rep. Serv. (West) 845, 284 N.Y.S.2d 222, 55 Misc. 2d 3 (1967)
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Rule of Law:
Under UCC § 2-508(2), if a buyer rejects a non-conforming tender of goods, the seller may have a further reasonable time to substitute a conforming tender if the seller had reasonable grounds to believe the non-conforming tender would be acceptable and seasonably notifies the buyer of the intent to cure.
Facts:
- A hearing aid clinic informed the defendant that an Acousticon Model A-660 was the best device for his condition.
- On January 15, 1966, the defendant signed a contract with the plaintiff to purchase the specific Model A-660 hearing aid.
- On February 2, 1966, the plaintiff delivered a Model A-665, informing the defendant it was a modified and improved version of the A-660.
- The defendant used the Model A-665 for 15 hours but found it caused headaches and was noisy.
- On February 8, 1966, after the clinic confirmed the model was incorrect, the defendant returned the hearing aid to the plaintiff.
- Upon its return, the plaintiff immediately offered to order the correct Model A-660 for the defendant.
- The manufacturer, Acousticon, sent a letter to the defendant on February 14, 1966, also offering to replace the device with either a new A-665 or the correct A-660.
- The defendant refused the plaintiff's and manufacturer's offers to provide the correct model and decided he no longer wanted any hearing aid from the plaintiff.
Procedural Posture:
- The plaintiff, a hearing aid dealer, sued the defendant-buyer in the City Court of Utica for the balance due on the purchase contract.
- At trial, the defendant attempted to make a counterclaim for the return of his $80 down payment.
- The court refused to consider the defendant's counterclaim, ruling it was untimely as it had not been included in the formal pleadings before the trial.
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Issue:
Does a seller who delivers a non-conforming but upgraded model of goods have the right to cure the improper delivery by substituting the conforming model after the buyer rejects the initial delivery?
Opinions:
Majority - Harold H. Hymes, J.
Yes. A seller who delivers a non-conforming but upgraded model of goods has the right to cure the improper delivery under UCC § 2-508(2). This section allows a seller to substitute a conforming tender even after the contract period if they had reasonable grounds to believe the non-conforming tender would be accepted and they seasonably notify the buyer of their intent to cure. Here, the plaintiff had reasonable grounds to believe the newer, improved model would be acceptable to the defendant. Upon learning of the rejection, the plaintiff acted within a reasonable time to notify the defendant of his intention to tender the conforming model. Because the defendant's position had not been altered by the non-conforming tender, the plaintiff's offer to cure was proper, and the defendant's subsequent refusal to accept was a breach of contract.
Analysis:
This case is a key illustration of the seller's right to cure under UCC § 2-508(2), which significantly softens the harshness of the common law's 'perfect tender rule.' The decision establishes that delivering a newer or superior model of a product can constitute 'reasonable grounds' for a seller to believe a non-conforming tender would be acceptable. This puts a burden on the buyer to allow the seller an opportunity to correct the mistake, promoting the preservation of contracts over their immediate cancellation for minor non-conformities. It solidifies the UCC's preference for commercial reasonableness and avoiding forfeiture over insisting on strict, technical performance.
