chapter 402 · breach, repudiation and excuse. . ... 402..'713 buyer's damages for...

41 '72402.101 SALES

UNIFORM COMMERCIAL CODE - SALES

SHORT TITLE, GENERAL CONSTRUCTION ANDSUBJECT MATTER .

402 101 Short title402 102 Scope; certain security and o the r transacti ons ex-

cluded from th i s chapter .402. 103 Defini tions and index of definitions .402 104 Defini tion s : " merc hant" ; "between me rchant s" ;

" financing agency" .402 105 Definitions: trans ferability ; "goods" ; "future"

good s ; "lot "; " commercia l uni t" .402 106 Defi n i ti o ns: "Contract" ; "ag reement" ; "contract

for sale" ; " sale" ; "present sale" ; "conforming"to contract ; "termination" ; "cancellation"

402 . 10 7 Goods to be s evered from realty : recording .FORM , FORMATION AND READJUSTMENT OF

CONTRACT. .402201 Formal requirements ; statute of frauds .402 202 Final written expre ss ion : parol or ext r in sic

evi denc e . .402 203 Seals inoperative402204 Formation in general ,.402205 Firm offers.402206 Offer and accepta nce in formation of contract ,402207 Addit ional terms in acceptance or confirmation .402 208 Cour se of pe rformance or p ractical construction ..402209 Mo dification, rescission and waive r .402. 210 Delegation of performance ; assignment of rights ..GENERAL OBLIGATION AND CONSTRUC TION

OF CONTRACT'402 30 1 General obligations of parties.402302 Unconscionable contract or clause ,402303 Allocation or division of r isks402 . 304 Pri ce p ayable in money , goods, realty , or

otherwise.402 305 Open price term .402306 Output, requ irements and exclu sive dealings .402 307 Delivery in single lot or several lots . .402 . 308 Ab sence of specified place for delivery ,.402309 Absence of specific time provisions; notice of

termination402 31 0 Open time for payment or running of c redit; au-

thority to sh i p under reservation, .402311 Options and co-ope r ation respecting performance402312 War ranty of title and against infringements ;

buyer 's obligat i on against infr ingement402 313 Express warranties by aff i rmation , promise ,

description, sample .402314 Implied warranty : merchantability ; usage of trade .402315 Implied warranty: fitness for particular pur pose .402 316 Exclusion or modification of warranties402317 Cumulation and conflict of war ranties express or

impl ied.40231 8 Third party beneficiaries of warrantie s, exp ress or

implied,.402319 F O. B an d F A . S terms402 320 C IF and C & FF term s402321 C , L F or C & F . : " net landed weights" ; "payment

on arrival" ; warranty of condition on arrival .402322 Deliver y " ex- s hip"402323 Form of bi ll of lading required in overseas ship-

ment ; "overseas"402 324 " No a rr ival, no sale " term402325 " Letter of credit" term; " confirmed credit"402326 Sale on approval and sale o r return; consi gnment

sales and rights of cred i to r s..402 . . .327 Special incidents of sale on approval and sale or

return.402 . 328 Sale by auction .

TITLE, CREDITORS AND GOOD FAITHPURCHASERS.

402401 Passing of title; reservation for secu rity ; limited ap-plication of this section ..

402 402 Rights of seller 's creditors against sold goods

402403 Power to transfer ; good f aith purcha se of goods ;"entrusting".

PERFORMANCE. . .402501 Insurable interest in goods; manner of identifica-

tion of goods .402 502 Buyer's right to goods on seller' s ins olvency402503 Manner of seller's tende r of del i very .402504 Shipment by seller ..402505 Seller' s shipment under reservation402506 Rights of financing agency..402507 Effect of seller's tender; deliv ery on c o ndition..402 . 508 Cure by seller of improper tender or delivery;

replacement .402. 509 Risk of loss in the absence of breach .402510 Effect of breach on risk of lo s s„402511 Tender of payment by buyer ; payment by check ..402512 Payment by buyer before inspection402 . 513 Buyer's right to inspection of goods .402514 When documents deliverable on acceptance; when

on payment .402515 Preserving evidence of go o ds in dispute .

BREACH , REPUDIATION AND EXCUSE. .402601 Buyer ' s rights on improper delivery .402602 Manner and effect of rightful rejection .402 .603 Merchant buyer' s dut ies as to rightfully rejected

goods .402604 Buy er 's options as to s alvage of ri ghtfully rejected

goo d s .402 . 605 Wa i ve r of bu yer ' s ob j ecti on s by failure to

particularize402 .606 What constitutes acceptance of goods402 .607 Effect of accept ance; notice of breach ; burden of

establishing breach after acceptance ; notice ofclaim or litigation to person answerable over .

402608 Revocation of acceptance in whole or in part .402609 Right to adequate assurance of performance402610 Anticipatory repudiation..402 . 611 Retraction of anticipatory repudiation .402 612 " Instalment contract" ; breach ..402. 613 Casualty to identified good s .402614 Substi tuted performance .402615 Excuse by failure of presupposed conditions..402616 Procedure on notice claiming excus e. .

REMEDIES .402701 Remedies for breach of collateral contracts not

impaired .402 702 Seller' s remedies on discovery of buyer' s

insolvency .402703 Seller 's remedies in general402704 Seller's light to identify goods to the contract not-

withstanding breach or to salvage unfinishedgoods .

402 705 Seller 's stoppage of delivery in trans it o r otherwise.402 706 Seller 's resale including contract for resale402707 "Person in the positi on of a seller " .402 ..'108 Seller's damages for nonacceptance or repudiation402 709 Action for the price ..402 .710 Seller' s incidental damages .402 '711 Buyer 's remedies in general ; buyer ' s secur ity inter-

est in rejected goods . .402712 "Cover" ; buyer's procurement of substitute goods . .402..'713 Buyer 's damages for nondelivery or repudiation402714 Buyer's damages for breach in regard to accepted

goo d s ..402715 Buyer's incidental and consequential damages ..402 716 Buyer's right to specific performance or replevin402 . 717 Deduction of damages from the price402 . 718 Liquidation or limitation of damages ; deposits . .402.' 719 Contractual modification or limitation of remedy ,.402 720 Effect of "cancellation " or " rescission" on claims

for antecedent breach ..402721 Remedies for fraud .

CHAPTER 402

Electronically scanned images of the published statutes.

4173 SALES 402.104

402 .'722 Who can sue third parties for inj ury to goods. 402 .724 Adm i ssibi lity of market quota tion s..402723 Proof of market price: time and place . 402 .725 Statute of'7imitations i n contracts for sal e

(1) "Future goods" - s : 402 105 .(m) ".`Goods" - s .. 402 . . 105 ..(n) "Identification" - s . 402 . . 501 .(o) "Instalment contract" - s 402.. 612..(p) "Letter of credit" - s , 402 . 325 . .(q) "Lot" - s , 402 105 . .(r) "Merchant" - s. 402, 104 .(s) "Overseas" - s. 402,323(t) "Person in position of seller" - s .

402 . . 707 . .(u) "Present sale" - s 402 .. 106..(v) "Sale" - s . 402. . 106 .(w) "Sale on approval" - s 402 . . 326 . .(x) "Sale or return" - s . 402 .. 326 .(y) "Termination" - s . 402 .. 106 ..(3) The following definitions in other chap-

ters apply to this chapter :(a) "Check" = s. 403, 104, -(b) "Consignee" - s . 407 .. 102 :.(c) "Consignor" - s . . 407 .. 102 .(d) "Consumer goods" s.. 409 .. 109 . .(e) "Dishonor" - s . 403 .. 507 ..(f ) "Draft" - s . 403 .. 104 .(4) In addition ch. 401 contains general defi-

nitions and principles of construction and inter-pretation applicable throughout this chapter ..

History: 1983 a 189 s . . 329 (24) .

402.104 Definitions: "merchant"; "betweenmerchants" ; "financing agency" . (1) "Be-tween merchants" means in any transactionwith respect to which both parties are charge-able with the knowledge or skill of merchants .

(2) "Financing agency" means a _bank,, fi-nance company or other person who in theordinary course of business makes advancesagainst goods or documents of title or who

Iby

arrangement with either the seller or the buyerintervenes in ordinary course to make or collect'payment due or claimed under the contract forsale, as by purchasing or paying the seller' sdraft or making advances against it or bymerely taking it for collection whether or notdocuments of' title accompany the draft "Fi-nancing agency" includes also a bank ' or otherperson who similarly intervenes between per-sons who are in the position of seller and buyerin respectt to the goods (s . 402 .. 707) . .'' (3) "Merchant" means a person who deals ingoods of 'the kind or otherwise by his occupa-tion holds himself out as having knowledge orskill peculiar to the practices or goods involvedin the transaction or to whom such knowledgeor skill may be attributed by his employment ofan agent or broker or, other intermediary who

402.103 Definitions and index of definitions .(1) In this chapter unless the context otherwiserequires :

(a) "Buyer" means a person who buys orcontracts to buy goods..

(b) "Good faith" in the case of a merchantmeans honesty in fact and the observance ofreasonable commercial standards of fair deal-ing in the trade . .

(c) "Receipt" of goods means taking physicalpossession of them

(d) "Selle r" means a person who s ells o rcontracts to . sell goods .

(2) Other definitions applying to this chapteror to specified sections thereof, and the sectionsin which they appear are :

(a) "Acceptance" - s . . 402,606.(b) "Banker's credit" - s. 402 . . 325 .(c) "Between merchants" - s . 402 . . 104 ..(d) "Cancellation" - s . 402 . . 106 . (1) ,(e) , "Commercial unit" - s 402 . 105 .

, (f) "Confirmed credit" - s , 402 325 ..(g) "Conforming to contract" - s. 402 .. 106..(h) "Contract forr sale" - s , 402, 106,(i) "Cover" - s . 402:712 .(j) "Entrusting" - s . 402 ..403 ::(k) "Financing agency" - s . 402 104,

SHORT TITLE, GENERALCONSTRUCTION AND SUBJECT

MATTER .

402.101 Short titl e. This chapter shalll beknown andd may be cited as uniform commercialcode-sales

402 .102 Scope ; certain security and othertransactions excluded from this chapter . Un-less the context otherwise requires, this chapterapplies to transactions in goods ; it does notapply to any transaction which although in theform of an unconditional contract to sell orpresent sale is intended to operate only as asecurity transaction nor does this chapter im-pair or repeal any statute regulating sales to:consumers, farmers or other specified classes of'buyers.

If' a consignment involves a delivery of goods to a met-chant who has been induced to accept them by an agreementfrom the consignor which permits their return in lieu of pay-Tent if they are not resold, the arrangement is a security con-signment governed by ch 409, as contrasted to a true con-signment . Clark Oil & Refining Co . v Liddicoat, 65 W (2d)612, 223 NW (2d) 530 .

Mixed contract for goods and services is subject to thischapter if predominate factor is transaction of sale, with la-bor incidentally involved . Van Sistine v . . Tollard, 95 W (2d)678, 291 NW (2d) 636 (Ct App . 1980) ..


other and its effect is the same as that of"termination" except that the canceling partyalso retains any remedy for breach of the wholecontract or any unperformed balance .

(2) Goods or conduct including any part of aperformance are "conforming" or conform tothe contract when they are in accordance withthe obligations under the contract . .

(3) "Contract" and "agreement" are limitedto those relating to the present or future sale ofgoods .

(4) "Contract for sale" includes both apresent salee of goods and a contract to sellgoods at a future time .

(5) -A "present sale" means a sale which isaccomplished by thee making of the contract . .

(6) A "sale" consists in the passing of titlefrom the seller to the buyer for a price (s .402401)

(7) "Termination" occurs when either partypursuant to a power created by agreement orlaw puts an end to the contract otherwise thanfor its breach On "termination" all obligationswhich are still' executory on both sides aredischarged but any right based on prior breachor performance survives ;

History : 1983 a 189

402 .107 Goods to be severed from realty:recording. (1) A contract for the sale of'miner-als or the like. (including oil and gas) or astructure or its materials to be removed fromrealty is a contract for the sale of goods withinthis chapter' if'they are to be severed by the sellerbut until severance a purported present salethereof which is not effective as a transfer of aninterest in land is effective only as a contract tosell,

(2) A contractt for the sale apart from the landof growing crops or other things attached torealty and capable of severance without mate-rial harm thereto but not described in sub, (1) orof timber to be cut is a contract for the sale ofgoods within this chapter whether the subjectmatter, is to be severed by the buyer or by theseller even though it forms part of the realty atthe time of contracting, and the parties can byidentification effect ` a present sale beforeseverance :.

(3) The provisions of this section are subjectto any third party rights provided by the lawrelating to realty records, and the contract forsale may be executed and recorded as a docu-ment transferring an interest in land and shallthen constitute notice to third parties of thebuyer's rightss underr the contract for sale

Hi story: 19'73 c. 215 . . .

402 . 106 Definitions: "contract'.'; "agree-ment"; "contract for sale sale presentsale"; "conforming" to contract; "termina -tion " ; "cancellation". .In this chapter unless thecontext otherwise requires :

(1) "`Cancellation" occurs when either' partyputs an end to the contract for breach by the

402.104 SALES

by his occupation holds himself out as havingsuch knowledge or skill .

History : 1983 a 189 . .See note to 402 .'.725, citing County of ' Milwaukee v . North-

rop Data Systems, 602 F (2d) 76 ' 7 (1979). .A county as a merchant under the uniform commercial

code .. 1980 WLR 194 .

402 .105 Definitions : transferability ;"goods"; "future " goods ;. "lot"; "commercial.lunit" . (1) (a) "Commercial unit" means such aunit of goods as by commercial usage is a singlewhole for purposes of sale and division of whichmaterially impairs its character or value on themarket or in use .. A commercial unit may be asingle article (as a machine) or a set of'articles(as a suite of furniture or an assortment of sizes)or a quantity (as a bale, gross, or carload) orany other unit treated in use or in the relevantmarket as a single whole .

(b) Goods must be both existing and identi-fied before any interest in them can pass . .Goods which are not both existing and identi-fied are "future" goods . A purported presentsale of future goods or of any interest thereinoperates as a contract to sell

(c) "Goods" means alll things (including spe-cially manufactured goods) which are movableat the time of identification to the contract forsale other than the money in which the price isto be paid, investment securities (ch . 408) andthings in action . . "Goods" also includes theunborn young of animals and growing cropsand other identified things attached to realty asdescribed in s . 402 .10'7 on goods to be severedfrom realty .`

(d) "Lot" meanss a parcel or a single articlewhich is the subject matter of a separate sale ordelivery, whether or not it is sufficient to per-form the contract ;

(3) There may be a sale of 'a part interest inexisting identified goods .

(4) An undivided share in an identified bulkof fungible goods is sufficiently identified to besold although the quantity of the bulk is notdetermined Any agreedd proportion of such abulk or any quantity thereof agreed upon bynumber, weight or otherr measure may to theextent of'the seller's interest in the bulk be soldto the buyer whoo then becomes an owner incommon .

History: 1983 a 189 _

4174


402.201 . Formal requirements ; statute offrauds . (1) Except as otherwise provided in thissection a contract for the sale of goods-for theprice of $500 or more is not enforceable by wayof action or defense unless there is some writingsufficient to indicate that a contract for sale hasbeen madee between the parties and signed bythe party against whom enforcement is soughtor by his authorized agent or broker A writingis not insufficient because it omits or incorrectlystates a term agreed upon but the contract is notenforceable under' this subsection beyond thequantity of goods shown in such writing .. .

(2) Between merchants if'within a reasonabletime a writing in confirmation of the contractand sufficient against the sender is received andthe party receiving it has reason to know itscontents, it satisfies the requirements of'sub„ (1)against such party unlesss written notice of ob-jection to its contents is given within 10 daysafter it is received .

(3) A contract: which does not satisfy the:requirements of sub ... (1) but which is valid inother respects is enforceable : :,

(a) If',the goods are to be specially manufac-tured for the buyer and are not suitable for saleto others in the ordinary course of the seller'sbusiness and the seller, before notice of'repudia-tion is received and under circumstances whichreasonably indicate that the goods are forr thebuyer, has made either a substantial beginningof their, manufacture or commitments for theirprocurement; or

(b) If the party against whom enforcement issought admits in his pleading, testimony orotherwise in court that a contract for sale wasmade, but the contract is not enforceable underthis paragraph beyond thee quantity of goodsadmitted; or

(c) With respect to goods for which paymenthas been made and accepted or which have beenreceived and accepted (s . 402 ..606).Receipt and acceptance of goods consistent with oral con-

tract is part performance sufficient to take offal contract outof statute of`frauds even though such conduct is not incon-sistent with some other dealings arguably h ad between theparties . Gernet v, Vasby, 75 W (2d) 660, 250 NW (2d)'319 .

Where letter' confirming oral agreement under (2) con-firmed subject to completion of formal memorializing docu-ment, bargain was enforceabl e even th ough document wasnot executed . . Lambert Cozp v . . Evans, 575 F (2d) 1 32(1978)

Statute of frauds is not applicable in an action based onpromissory estoppel .' Janke Co n struction Cc, Inc .c v .. VulcanMateria ls Co.. 386 F' Supp, 687 .

The statute of frauds of'the UCC and the doctrine of'es-toppel . Edwards, 62 MLR 205 ( 1 978).

402 .202` Final written expression: parol orextrinsic evidence: Terms with respect towhich the confirmatory memoranda of'the par-

402.206 Offer and acceptancee in formation ofcontract. (1) Unless otherwise unambiguouslyindicated by the language or circumstances :

(a) An offer to make a contract shall beconstrued as inviting acceptance in any mannerand by any medium reasonable in thecircumstances ;

4175

FORM, FORMATION ANDREADJUSTMENT OF CONTRACT

SALES 402.206

ties agree or which are otherwise set forth in awriting intended by the parties as a final expres-sion of their agreement with respect to suchterms as are included therein may not be contra-dicted by evidence of any prior agreement or ofa contemporaneous oral agreement but may beexplained or supplemented :

(1) By course of' dealing or usage of ' trade (s . .401 .205) or by course of performance (s .402 .: 208);

(2) By evidence of consistent additional termsunless the court finds the writing to have beenintendedalso as a complete and exclusive state-ment of the terms of the agree}nent .

402 .203 Seals inoperative . The affixing of aseal to a writing evidencing a contract for' sale oran offer to buy or sell goods does not constitutethe writing a sealed instrument and the law withrespect to sealed instruments does not apply tosuch a contract or offer

402 .204 Formation in general . (1) A contractfor sale of goods may be made in any mannersufficient to show agreement, including conductby both parties which recognizes the existenceof"such a contract :

(2) An agreement sufficient to constitute acontract for sale may be found even though themoment of its making is undetermined . .

(3) Even though one or more terms are leftopen a contract for sale does not flail for indefi-niteness if the parties have intended to make acontract and there is a reasonably certain basisfor giving an appropriate remedy

Contract formation under Article II of the Uniform Com-mercial Code Edwards , 61 MLR 215 .

402.205 Firm offers. An offerr by a merchantto buy or sell goods in a signed writing which byits terms gives assurance that it will be held openis not revocable, for lack of consideration,during the time stated or if' no time is stated fora reasonable time, but in no event may suchperiod of irrevocabilityy exceed 3 months ; butany suchh term of assurance . on a form suppliedby the offeree must be separately signed by theoffer or,

Although the bid for the pipe did not meet the "firm offer"requirement, the facts pleaded and relied upon by the con-tractor to support its claim and to which the supp l ier ie-sponded in entering its defense gave rise to the doctrine ofpromissory estoppel . Janke Construction Cc , I nc.. v . Vul-can Materials Co . 386 F Supp. 687 .


402 . 207 Additional terms in acceptance orconf i rmation . ( 1) A definite and seasonableexpression of acceptance or a written confiima-tion which is sent within a reasonable timeoperates as an acceptance even though it statesterms additional to or different from thoseoffered or agreed upon, unless acceptance isexpressly made conditional on assent to theadditional or different terms .

(2) The additional terms are to be construedas proposals for addition to the contract ; Be-tween merchants such terms become part of thecontract unless :

(a) The offer expressly limits acceptance tothe terms of the offer ;

(b) They materially alter it ; or(c) Notification of objection to them has

already been given or is given within a reason-able time after notice of'them is received .

(3) Conduct by both patties which recognizesthe existence of'a contract is sufficient to estab-lish a contract for sale although the writings ofthe parties do not otherwise establish a con-tract, In such case the terms of" the particularcontract' consist of those terms on which thewritings of the parties agree, together with anysupplementary terms incorporated under anyother provisions of chs . 401 to 409.History : 1979 c 89 .A seller's "acknowledgment of order" which purported to

deny liability for damages for defects becomes part of thecontract only if assented to by the buyer . Air ProductsChemicals, Inc v . Fairbanks, 58 W, (2d) 193, 206 NW (2d)414 .

Where offer to purchase contained delivery term "FO B ,our truck, your plant, loaded" andd ofT'eree's response con-tained term "as is, where is", and where parties had no priororal agreement, there is no valid contract between parties andcourt cannot properly reach issue of whether additional ordifferent terms in response to offer destroy agreement be-tween parties. Koehring Co . v Glowacki,`77 W (2d) 497,253NW (2d) 64

Where contract specified FAS terms, buyer's confiima-tion form containing inconsistent terms did not relieve buyerof liability for goodss properly delivered FAS Melrose I n-tern ; Etc, v. Patrick Cudahy Inc 482 FSupp: 1369.(1980),

402.208 Course of performance or practicalconstruction. ( 1) Where the contract for saleinvolves repeated occasions for performance by

402.209 Modification, rescission and waiver .(1) An agreement modifying a contract withinthis chapter needs no consideration to bebinding.

(2) A signed agreement which excludes modi-fication or rescission except by a signed writingcannot be otherwise modified or rescinded, butexcept as between merchants such a require-ment on a form supplied by the merchant mustbe separately signed by the other party .

(3) The requirements of s . 402„201 must besatisfied if the contract as modified is within itsprovisions

(4) Although an attempt at modification orrescission does not satisfy the requirements ofsub. (2) or (3) it can operate as a waiver

(5) A party who has made a waiver affectingan executory portion of'the contract may re-tract the waiverr by reasonable notification re-ceived by the other party that strict perform-ance will be required of'any term waived, unlessthe retraction would be unjust in view of amaterial changee of" position in reliance on thewaiver.

402.210 Delegation of performance ; assign-ment of rights . (1) A partymay perform hisduty through a delegate unless otherwise agreedor unless the other ; party has a substantialinterest in having his original promisor performor control the acts i equired by the contract. Nodelegation ; of performance relieves the partydelegating of any duty to perform or any liabil-ity for breach ..

(2) Unless otherwise agreed all rights of" ei-therseller or buyer can be assigned except wherethe assignment would materially change theduty of the other party, or increase materiallythe burden or risk imposed on him by his

402.206 SALES

(b) An order or other offer to buy goods forprompt or current shipment shall be construedas inviting acceptance either by a prompt prom-ise to ship or by the prompt or current shipmentof conforming or nonconforming goods, butsuch a shipment of nonconf'orming goods doesnot constitute an acceptance if the seller season-ably notifies the buyer that the shipment isoffered only as an accommodation to the buyer,

(2) Where the beginning of a requested per-formance is a reasonable mode of acceptance anofferor who is not notified of acceptance withina reasonable time may treat the offer as havinglapsed before acceptance.

4176

either party with knowledge of the nature of theperformance and opportunity for objection to itby the other, any course of performance ac-cepted or, acquiesced in without objection shallbe relevant to determine the meaning of theagreement .

(2) The express terms of the agreement andany such course of performance, as well as anycou r se - of ' dealing and usage of trade, shall beconstrued whenever reasonable as consistentwith each other ; but when such construction isunreasonable, express terms shall controlcourse of performance and course of perfocm-ance shall control both course of dealing andusage of' trade (s . 401 .205) .

(3) Subjectt to s . . 402 . 209 on modification andwaiver, such course of performance is rel evantto show a waiver or modification of any terminconsistent with such course of performance .


402 .304 Price payable in money, goods , re-alty , or otherwise. (1) The price can be madepayable in money or otherwise.. Hit is payablein whole or in part in goods each party is a sellerof'the goods which he is to transfer .

(2) Even though all or part of the price ispayable in an interest in realty the transfer ofthe goods and the seller's obligations with refer-ence to them are subject to this chapter, but notthe transfer of the interest in realty or thetransf'eror's obligations in connectiontherewith

. 402.305 Open price term . (1) The parties if'they so intend can conclude a contract for saleeven though the price is not settled In such acase the price is a reasonable price at the timefor delivery if :

(a) Nothing is said as to price; or(b) The price is left to be agreed by the parties

and they fail to agree; or(c) The price is to be fixed in terms of some

agreed market or other standard as set orrecordedd by a third person or agency and it isnot so set or recorded .

(2) A-price to be fixed by the seller or by thebuyer means a price for' him to fix in good faith . .

(3) When a price left to be fixed otherwisethan by agreement of the parties fails to be fixedthrough fault of one party the other may at hisoption treatt the contract as canceled or himself'fix a reasonable price . .

(4) ', Where, however, the parties intend not tobe bound unless the price is fixed or agreed andit is not fixed or agreed there is no contract . Insuch a case the buyer must return any goodsalready received or if unable so to do must paytheir' reasonable value at the time of deliveryand thee seller must return-any . portion of theprice paid on account,

An implied contract: by a dairy plant to pay competitiveprices to milk pro ducers does n ot permit th e plant to pay alower price since the mere absence of misrepresentation ordeceit does n ot establish good faith; an open price contractstill requires fair' dealing . Columbus Milk Producers vDeptt of Agriculture, 4 8 W (2d) 451, :180 NW (2d) 617 .

Under t his section, providing that parties to a contract forthe sale of'goods may conclude the contract agreeing to settleprice at a subsequent date, the contract price is a reasonableprice at time of delivery where the parties are unable to agree.Sch mieder v. Standard Oil Co, of Indiana, 69 W (2d) 419,230 NW (2d)'732

402 .306 Output , requirements and exclusivedealings. (1) A term which measures the quan-tity by the output of the seller or the require-ments of the buyer means such actual output orrequirements as may occur in good faith, exceptthat no quantity unreasonably disproportion-ate to any stated estimate or in the absence of astated estimate to any normal or otherwisecomparable prior output or requirements maybe tendered or demanded .

402.302 . ., Unconscionable contract or clause .(1) If the court as a matter of laww finds thecontract or any clause of the contract to havebeenn unconscionable at the time it was made thecourt may refuse to enforce the contract, or itmay enforce the remainder of the contract with-out the unconscionablee clause, or it may so limitthe application of any unconscionable clause asto avoid, any unconscionable result

(2) When it is claimed or appears to the courtthat the contract or any clause thereof may beunconscionable the parties shall .l be afforded areasonable opportunity to present evidence asto its commercial setting, purpose and effect toaid the court in making the determination ..

402 . 303 Allocation or division of risks .Where this chapter allocates a risk or a burdenas between the parties "unless otherwiseagreed", the agreement may not only shift theallocation but may also divide the risk orburden

4177

contract, or impair materially his chance ofobtaining return perfotrnance . A right to dam-ages for breach of the whole contract or a rightarising out of'the assignor's due performance ofhis entire obligation can be assigned despiteagreement otherwise .

(3 ) Unless the circumstances indicate thecontrary a prohibition of assignment of' "thecontract" is to be construed as barring only thedelegation to the assignee of the assignor'sperformance,

(4) An assignment of "the contract' or of "allmy rights under the contract" or an assignmentin similar general terms is an assignment ofrights and unlesss the language or the circum-stances (as in an assignment for security)) indi-cate the contrary, it is a delegation of perform-ance ` of the duties of the assignor andd itsacceptance by the assignee constitutes a prom-ise by him to perform those duties . . This prom-ise is enforceable by either the assignor or theother party to the original contract .

(5) The other party may treat any assignmentwhich delegates performance as creating rea-sonablegrounds for insecurity and may withoutprejudice to his lights;against the assignor de-mand assurances from the assignee (s .. 402 . .609) ..

GENERAL OBLIGATION AND ,CONSTRUCTION; OF CONTRACT .:

402.301 General obligations of parties. Theobligation of the seller is to transfer and deliverand that of the buyer is to accept and pay inaccordance with the contract .

SALES 402 .306


402.311 Options and co -operation respect -ing performance . (1) An agreement for salewhich is otherwise sufficiently definite (s .402 .204 (3)) to be a contract is not made invalidby the fact that it leaves particulars of'perform-ance to be specified by one of the parties . Anysuch specification must be made in good faithand within limits set by commercialreasonableness .

(2) Unless otherwise agreed specificationsrelating to assortment of the goods are at thebuyer's option and except as otherwise pro-vided ins 402 .319 (1) (c) and (3) specificationsor arrangements relating to shipment are at theseller's option

(3) Where such specification would materi-ally affect the other party's performance but isnot seasonably made or where one party's co-operation is necessary to the agreed perform-ance of the other but is not seasonably forth-coming, the other party in addition to all otherremedies :

(a) Is excused for any resulting delay in hisown' performance ; and

(b) May also either proceed to perform in anyreasonable manner or after the time for a mate-rial part of his own' performance treat thefailure to specify or to co-operate as a breach byfailure to deliver or accept the goods.

402 .312 Warranty ' of title and against in-fringements; buyer 's obligation against in-fringement. (1) Subject to sub . (2) there is in acontract for sale a warranty by the seller that :

(a) The title conveyed shall be good, and itstransfer rightful ; and .

(b) The goods shalll be delivered free fromany security interest or other lien or encum-brance of which the buyer at the time of con-tracting has no knowledge .11 (2)'A warranty under sub. (1) will be ex-cluded or modified only by specific language orby circumstances which give the buyer, reason toknow that the person sellingg does not claim title

402 . 308 Absence of specified place for deliv -ery: Unless otherwise agreed :

(1 ) The place for delivery of goods is theseller's place of business or if he has none hisresidence; but

`(2) In a contract for sale of identified goodswhich to the knowledge of the parties at thetime of'contracting are in some other place, thatplace is the place for their delivery ; and

(3) Documents of title may be deliveredthrough customary banking channels .

402 .309 Absence of specific time provisions;notice of termination. (1) The time for- shipmentor delivery or any other action under a contractif not provided in this chapter or agreed uponshall be a reasonable time,

(2) Where the contract provides for succes-sive 'peformances but is indefinite in duration itis valid for a reasonable time but unless other-wise agreed may be terminated at any time byeither party .

(3) Termination of 'a contract by one partyexcept on the happening of an agreed eventrequires that reasonable notification be re-ceived by the other party and an agreementdispensing with, notification is invalid if itsoperation would be unconscionable .

402 . 310 Open time for payment or running ofcredit ; authority to ship under reservation .Unless otherwise agreed :

(1) Payment is due at the time and place atwhich the buyer is to receive the goods eventhough thee place of shipment is the place ofdelivery; and

(2) If the seller is authorized to send thegoods he may ship them under reservation, andmay tender the documents of title, but the buyermay inspect the goods after their arrival beforepayment is due unless such inspection is incon-

402.306 SALES

(2) A lawful agreement by either the seller orthe buyer for exclusive dealing in the kind ofgoods concerned imposes unless otherwiseagreed an obligation by the seller to use bestefforts to supply the goods and by the buyer t ouse best effo rts to promote theirr sale,"Pay as used" proposal to purchase inventory was analo-

gous to "requirements contract" . Lambent Corp . v Evans,575 F ' (2d) 132 (1978).:

402 . 307 Delivery in single ' lot or several lots .Unless otherwise agreed all goods called for bya contract for sale must be tendered in 'a singledelivery and payment is due only on such tenderbut where the circumstances give either partythe right to make or demand delivery in lots theprice if it can be apportioned may be demandedfor each lot .

41 '78

sistent with the terms of the contract (s .402. 513); and

(3) If delivery is authorized and made by wayof documents of title otherwise than by sub .. (2)then payment is due at the time and place atwhich the buyer is to receivee the documentsregardless of where the goods are to be received ;and

(4) Where the,seller is required or authorizedto ship the goods on credit . the credit periodruns from the time of shipment but postdatingthe invoice or delaying its dispatch will corre-spondingly delay the starting of the creditperiod :


in himself' or that he is purporting to sell onlysuch right or title as he or a third person mayhave .

(3) Unless otherwise agreed a seller who is amerchant regularly dealing in goods of the kindwarrants that the goods shall be delivered freeof the rightful claim of any third person by wayof infringement or thee like but a buyer whofurnishes specifications to the seller must holdthe seller harmless against any such claim whicharises out of compliance with the specifications . .His tory : 1971 c 40,

402.313 Express warranties by affirmation ,promise , description , sample. (1) Express war-rarities by the seller are created as follows :

(a)Any affirmation. of fact or promise madeby the seller to the buyer which relates to the

. .goods and becomes part of the basis of` thebargain creates an express warranty that thegoods shall conform to the affirmation orpromise .

(b) Any description of the goods which ismade part of the basis of the bargain creates anexpress warranty that the goods shall conformto the description .

(c) Any sample or-'model which is made partof the basis of the bargain creates an expresswarranty that the whole of the goods shallconform to thee sample or model .

(2) It is not necessary to the creation of anexpress warranty that the seller use formalwords such as "warrant" or "guarantee" orthat he have a specific intention to make awarranty, but an affirmation merely of thevalue of the goods or a statement purporting tobe merely the seller's opinion or, commendationof'the goods does not create a warranty .

Express warranties discussed . Ewers v . Eisenzopf, 88'W(2d) 482, 276 NW (2d) 802 (1979) . .

Strict liability of the bailor, lessor and licensor, 5'1 MLRlt1

402 .314 Implied warranty : merchantablity ;usage of trade. ( 1 ) Unless excluded or modified(s 402 . .31b), a warranty that the goods shall bemerchantable is implied in a contract for theirsale ifthe seller is a merchant with respect togoods of that kind. Under, this section theserving for value of food or drink to be con-sumed either on the premises or elsewhere is asale

(2) ''Goods to be merchantable must be atleast such as :

(a) Pass without objection in the trade underthe contract description; and

(b) In the case of fungible goods, are of fair'average quality within the description ; and

(c) Are fit for the ordinary purposes forwhich such goods are used ; and

402.315 Implied warranty: fitness for partic-ular purpose . Where the seller at the time ofcontracting has reason to know any particularpurpose for which the goods are required andthat the buyer is relying on the seller's skill orjudgment to select or furnish suitable goods,there is unless excluded or modified under s .402 316 an implied warranty that the goodsshall be fit for such purpose .

Where expansion joints corroded soon after' installation insteam system, but defendant manufacturer was unaware ofcorrosive agent in steam, this section does not allow recovery .Wis . Elec, Power Co .' v, Zallea Bros . ; Inc, 606 F (2d) 69'7(1979),

402.316 Exclusion or modification of warran -tie s. (1) Words or conduct relevant to thecreation of an express warranty and words orconduct tending to negate or limit warrantyshall be construed wherever reasonable as con-sistent with each other ; but subject to s, 402„202on parol or extrinsic evidence,, negation orlimitation is inoperative to the extent that suchconstruction is unreasonable, .

(2) Subject to sub .. (3), to excludee or modifythe implied warranty of merchantability or anypart of it the language must mentionmerchantability and in case of a writing must beconspicuous, and to exclude or modify anyimplied warranty of fitness the exclusion mustbe by a writing and conspicuous, Language to

,.exclude all implied warranties of fitness is suffi-cient if it states, for example, that "There are nowarranties which extend beyond the descriptionon the face hereof'.,"

(3) Notwithstanding sub . . (2) :(a) Unless the circumstances indicate other-

wise, all implied warranties are excluded byexpressions like "as is", "with all faults" orother language which in common understand-

4179 SALES 402 .316

(d) Run , withinn the variations permitted bythe agreement, of ' even kind, quality and quanti-ty within each unit and among all units in-volved ; and

(e) Are adequately contained, packaged , andlabeled as the agreement may require; and

(f) Conform to the promises or affirmationsof fact made on the container or label if' any ..

(3) Unless excluded or modified (s 402 316)other implied warranties mayy arise from courseof dealing or usage of trade . .

Band mothers, although selling the food, were notmerchants as contemplated by (1) . Samson v Riesing, 62 W(2d) 698, 215 NW (2d) 662 .

Where circumstances rendered breach of good faith andof' fiduciary obligation chargeable to buyer, buyer was bai tedfrom asserting causes based on breach of wa rranty ofmerchantability, or on seller's claimed fault, to recover frompacking company that portion of claim disallowed, withbuyer's consent, by railroad Greisler Bros , Inc . : v Packer-land Pack Co , Inc . . .392 F Supp , 206 .

Status of products liability in Wisconsin .. Coyne, 43WBB, No 4


402.319 F.O.B. and F.A.S. terms. (1) Unlessotherwise agreed the term F O . B . (which means"free on board") at a named place, even thoughused only in connection with the stated price, isa delivery term under which:

(a) When the term is KO B, th e place ofshipment, the seller must at that place ship thegoods in the manner provided in s . 402 : 504 andbear the expense and risk of putting them intothe possession of the carrie r ; or

(b) When the term is F :O .B ., the place ofdestination, the seller must at his own expenseand risk transport the goods to that place andthere tender delivery of them in the mannerprovided in s . 402 . 503 ;

(c) When under either par ' . . (a) or (b) the termis also F 0. B . vessel, car' or other vehicle , theseller must in addition at his own expense andr i sk load the goods ' on board . If the term isF O . B : vessel the buyer must name the vesseland in an appropriate case the seller mustcomply with s.. 402323 on the form of bill oflading , .

(2) Unless otherwise agreed the term F.A .S ,vessel (which means "free alongside") at anamed port, even though used only in connec-tion with the stated price , is a delivery termunder which the seller must :

(a) At his ownn expense and risk deliver thegoods alongside the vessel in the manner usualin that port or on a dock designated and pro-vided by the buyer- ;, and

(b) Obtain and tender a receipt for the goodsin exchange for which the carrier is under a dutyto issue a billl of lading .,

(3) Unless otherwise agreed in any case fall-ing within sub . (1) (a) or (c) or (2) the buyermust seasonably give anyy needed instructionsfor making delivery, including when the ter m isF.A S& orF.O.B. the loading berth of the vesseland in an appropriate case its name and sailingdate .. The seller may . treat the failure of neededinst ructions as a failure o f' co-operation under s..402 . 311 . He may also at hiss option move thegoods in any reasonable manner preparatory todelivery or shipment

(4) Under the term F .O .B., vessell or FA .5unlessotherwise agreed the -buyer must make

payment .against tender of the required docu-ments and the seller may not tender nor thebuyer demand delivery of ' the goods in substitu-tion for the documents..

See note to 402 .207, citing Melrose Intern, , Etcc v PatrickCudahy Inc. 482 'F Supp 1369 (1980)

402.320 C.I .F . and C.& F. terms. (1) The termC . I.F : means that the price includes in a lumpsum the cost of the goods and the insurance andfreight to the named destination . The term C :&

402.317 Cumulation and conflict of warran-ties express or implied. Warranties whetherexpress or implied shall be construed as consist-ent with each other and as cumulative, but ifsuch construction is unreasonable the intentionof the parties shall determine which warranty isdominant. In ascertaining that intention thefollowing rules apply :

(1 ) Exact or technical specifications displacean inconsistent sample òr model or generallanguage of description .

(2) A sample from an existing bulk displacesìnconsistent general language of description .

(3) Express warranties displace inconsistentimplied warrantiess other than an implied war-ranty of fitness for a particular purpose,

402 .318 Third party beneficiaries of warran -ties, express or implied. A seller's warrantywhether express or implied extends to any natu-ral person who is in the family or household ofhis buyer or who is a guest in his home if it isreasonable to expect that such person may use,consume or be affected by the goods and who isinjured in person by breach of the warranty, Aseller may not exclude or limit the operation ofthis section`

Piavity rule applies in ìmplied warranty cases and theavailability of punitive damages depends on the facts provedrather than the forma l theory of recovery alleged .. Drake v .Wham-O Manufactuiing'Co 373 F Supp. 608 .

402.316 SALES

ing calls the buyer's attention to the exclusion ofwarranties and make s plain that there is noimplied warranty ; and

(b) When the buyer before entering into thecontract has examined the goods or the sampleor model as full y as the buyer de sired or hasrefused to examine the goods there is no impliedwarranty with regard to defects which an exam-ination ought in the circumstances to haverevealed to the buyer;

(c) There is no implied warranty that cattle ,hogs , sheep or horses are free from sickness ordisease at the time a s a le i s consummated if allstate and federal regulations pertaining toanimal health aree complied with by the seller,unless the seller knows at the time a sale isconsummated that the cattle, hogs, sheep orhorses were sick or diseased ; and

(d) An implied warranty can also be excludedor modified by course of dealing or course ofperformance or usage of' trade .

(4) Remedies for ' breach of warranty can belimited in accordance with ss . 402,718 and402,719 on liquidation or limitation of' damagesand on contractual modification of ' remedy . .

History: 1981 a 1 28 .Disclaimer of'imptied warranties under (2) made after sale

would be ineffective . Taterka v. Ford Motor Co 86 W (2d)140, 271 NW (2d) 653 (1978) .

4180


(2) An agreement described in sub . (1) or anywarranty of quality or condition of the goodson arrival places upon thee seller the risk ofordinary deterioration, shrinkage and the likein transportation but has no effect on the placeor time of identification to the contract for saleor delivery or on the passing of'the risk of'loss .

(3) Unless otherwise agreed where the con-tract provides for payment on or after arrival ofthe goods ttie seller must before payment allowsuch preliminary inspection as is feasible ; but ifthe goods are lost delivery of the documents andpayment are due when the goods should havearrived . .

402 .322 Delivery "ex-ship" . ( 1 ) Unless other-wise agreed a term for.y delivezy of goods . "ex-ship" (which means from the carrying vessel) orin equivalent language is not restricted to aparticular ship and requires delivery from a shipwhich has reached a place at the named port ofdestination where goods of the kind are usuallydischarged .

(2) Under such a term unless otherwiseagreed:

(a) The seller mustt discharge all liens arisingout of the carriage and furnish the buyer with adirection which puts the carrier under a duty todeliver the goods; and

(b) The risk of loss does not pass to the buyeruntil the goods leave . the ship's tackle or areotherwise properly unloaded

402.323 Form of , bill of lading ; requiredd inoverseas shipment; "overseas". (1) Wherethe contract contemplates overseas shipmentand contains. a term C .I,.FF or C.& F. or F,O„BBvessel, the seller unlesss otherwise, agreed mustobtain a negotiable bill of lading stating that thegoods have been loaded on board or, in the caseof a .term C., I,,F or C 'A F,, received forshipment

(2) Where in, a case within sub (1) a, bill oflading has been issued,in a set of parts, unlessotherwise agreed if thee documents are nott to besent from abroad the buyer may demand tenderof the full set; otherwise.only one part of the billof lading need be tendered,. Even if the agree-ment expressly requires a full set :

(a) Due tender of .a single part is acceptablewithin the provisions of's . 4,02,508,D) on cure ofimproper delivery; and

(b) Even though the full set is demanded, ifthe documents are sent. from abroad the persontendering an incomplte set may neverthelessrequire payment upon furnishing an indemnitywhich fhe buyer in good faith deems adequate ..

(3) A shipment by water or by air or acontract contemplating such shipment is "over-

F,.or C F means that the price so includes .cost,and freight to the named destination . .

(2) Unless otherwise agreed and even though,used only in connection with the stated priceand destination, the term CIF, destination orits equivalent requires the seller . at his ownexpense.e andd riskk to :

(a) Put the goods into the possession of acarrier at the port for shipment and, obtain anegotiable bill or bills of lading covering theentire transportation to the named destination ;and

(b) Load the goods and obtain a receipt fromthe carrier (which may be contained in the billof lading) showing that the freight has been paid

or provided for,-, and (c) Obtain a policy or certificate of insurance,including any war risk insurance, of a kind andon terms then curt ent,at the port of shipmentt inthe, usual amount, in the currency of the con-tract, shown to cover, the same goods coveredby the bill of lading and providing for' paymentof loss to the order of' the buyer or fox : theaccount of whom it may concern ; but the sellermay add to the price the amount of the pre-mium for any such war risk insurance; and

(d) Prepare an invoice of the goods and' procure any other' documents required to effectshipment or to comply with the contract ; and

(e) Forward and tender with commercialpromptness all the documents in due form andwith any.indorsemerit necessaryy to perfect thebuyer's rights, ; (3) Unless otherwise agreed the term C ..& F .or its equivalent has the same effect and im-poses upon the seller the same obligations andrisks as a C. IF, term except the obligation as toinsurance

(4) Under the term CL F . or C & F, : unlessotherwise agreed the buyer must make paymentagainst tender of the . required documentss andthe seller, may not tender, nnot, the buyer demanddelivery of the goods in substitution for thedocuments

.402 . 321 . C .I.. F .; or ,C . & F.: ".` net landedweights"; "payment on arrival" ; warranty ofcondition on arrival . Under a contract contain-ing a term CI F, or C & F

(1:) Wheree the price is based on or is to beadjusted according to "net landed weights","delivered weights", "out turn" quantity or.quality or the like, unless otherwise agreed theseller- must reasonably estimate the price . Thepayment due on tender of the documents calledfor, by the contract is the amount so estimated,but after, final adjustment of the, price a settle-ment must be made 'with commercialpromptness

418 1 SALES 402 .323


seas" insofar as by usage of trade or agreementit is subject to the commercial, financing orshipping practices characteristic of interna-tional deep water commerce

402 .324 "No arrival , no sale" term. Under aterm "no arrival, no sale" or terms of' likemeaning, unless otherwise agreed :

(1 ) The seller must properly ship conforminggoods and if they arrive by any means he musttender them on arrival but he assumes no obli-gation that the `goods will arrive unless he hascaused the nonarrival; and

(2) Where without fault of the seller thegoods are in part lost or have so deteriorated asno longer to conform to the_ contract or arriveafter the contract time, the uyer' may proceedas if there had been casualty to identified goods

402 . 325 "Letter of credit" term; "confirmedcredit ' . (1) Failure of the buyer seasonably tofurnish an agreed letter of credit is a breach ofthe contract for sale

(2) The delivery to seller of a proper letter ofcredit suspends the buyer's obligation to pay . Ifthe letter of.credit is dishonored, the seller mayon seasonable notification to the buyer, requirepayment directly from him ..

(3) Unless otherwise agreed the term "letterof credit' or "banker's credit" in a contract forsale means an irrevocable credit issued by afinancing agency of good repute and, where theshipment is overseas, of'good international re-

- pute . The term "confirmed credit" means thatthe creditt must also carry the direct obligationof such an agency which does business in theseller's financial market;

: 402.326 Sale on approval and sale or return ;consignment sales and rights of creditors . (1)Unless-otherwise agreed, if'delivered goods maybe returned by the buyer even though theyconform to the contract', the transaction is`.

(a) A "sale on approval" if the goods aredelivered primarily for use ; and

(b) A "sale or, return" if'the goods are deliv-ered primarily for resale,

(2) Except as provided in'sub . (3), goods heldon approval are not subject to the claims of thebuyer's creditors until acceptance ; goods heldon sale or return are subject to such claims whilein, the buyer's possession .:

(3) Where goods are delivered to a person for,sale and such person maintains a place of busi-ness at which he deals in goods of the kindinvolved, under a name other than the name ofthe person making delivery, then with respect toclaims of creditors of the person conducting the

402.327 Special incidents of sale on ap-proval and sale or return. (1) Under a sale onapproval unless otherwise agreed :

(a) Although the goods are identified to thecontract'the risk of loss and the title do not passto the buyer until acceptance ; and

(b) Use of the goods' consistent with thepurpose of trial is not acceptance but failureseasonablyy to notify the sellerr of election toreturn the goods is acceptance, and if the goodsconform to the contract acceptance of any partis acceptance of the whole ; and

(c) After duee notification of election to re-turn, the return is at the seller's risk and expensebut a merchant buyer must follow any reason-able instructions

(2) Under a sale or return unless otherwiseagreed :

(a) The option to return extends to the wholeor any commercial unit `of the" goods while insubstantially their original condition, but mustbe exercised seasonably; and

(b) The return is at the buyer's risk and_expense .

402.328 Sale by auction. (1) In a sale byauction if goods are put up in`lots each lot is thesubject of a separate sale„ ""

(2) A sale by auction is complete when theauctioneer so announces by the fall of thehammer or in other customary manner .. Wherea bid is made while the hammer is falling in

402 .323 SALES 4182

business the goods are deemed to be on sale orreturn. This subsection is applicable eventhough an agreementpurportsto reserve title tothe person making delivery until payment orresale or uses such words as "on consignment"or "on memorandum" : However, this subsec-tion is not applicable if the person makingdelivery:

(a) Complies with an applicable law provid-ing for a consignor's interest or the like to beevidenced by a sign ; or

(b) Establishes that the person conductingthe business is generally known by his creditorsto be substantially engaged in selling the goodsof others; or

(c) Complies with the filing provisions of ch409 ..,

(4) Any "or return" term of a contract forsale is to be treated as a separate contract forsale within s :. 402,201 and as contradicting thesale aspect: of the contract within s : 402 .202 onparol or extr i nsic evidence . :

Goods sold on consignment for the purpose of price main-tenance rather than security are subject to creditors' claimsunless the seller complies with sub : (3) A purchaser from areceiver takes good title even though he knew of seller'sclaim Columbia International Corp .p v. . Kempler, 46 W (2d)550, 1 7 5 NW (2d) 465.


lar and despite any reservation of a securityinterest by the bill of lading :

(a) If the contract requires or, authorizes theseller to send the goods to the : buyer but does

. not require him to deliver them at destination,title passes to the buyer, at the time and place ofshipment; but

(b) If the contract requires delivery at desti-nation, title passes on tender there.

(3) Unless otherwise explicitly agreed wheredelivery is to be made without moving thegoods :

(a) If the seller is to deliver a document oftitle, title passes at the time when and the placewhere he delivers such documents ; or

(b) If the goods are at the time of contractingalready identified and no documents are to bedelivered, title passes at the time and place ofcontracting ..

(4) A rejection or other refusal by the buyerto receive or retain the goods, whether., or not

,justified, or a , justified revocation of acceptancerevests title to the goods in the seller Suchrevesting occurs by operation of law and is not a"sale",

History : 1979 c, 89Title to vehicle passes to buyer when seller completes per-

foimance ' of contract with reference to transfer of physicalpossession, despite seller's retention of certificate of title .Nat : Exchange Bank of Fond du Lac v . Mann, 81 w (2d) 352,260 NW (2d) 716 . .'

See note to 7 ' 1, 51, citing Harold W. Fuchs Agency, Inc .c v .Dept . of Revenue, 91 W (2d) 28.3 ; 282 NW (2d) 625 (Ct. App .... 1979) ..,

See note to .342.. 15, citing Bacheller v . Employers Mut„ Li-ability Ins:. Co. 93 W (2d) 564, 287 NW (2d) 817 (1980). .

402.402 Rights of seller's creditors againstsold goods. (1) Except as provided in subs . (2)and ' (3), rights of unsecured creditors of theseller with respect to goods which have beenidentified to a contract for sale are subject to thebuyer's r ights to recover the goods under ss .402.:502 and 402 . 716 ,

(2) A creditor of the seller, may treat a sale oran identification of goods to a contract for saleas void if as against him a retention of posses-sion by the seller is fraudulent under any rule oflaw of the state where the goods are situated,except that retention of possession in good faithand current course of trade by a merchant-sellerfor a commercially reasonable time after a saleor identification is not fraudulent .,

(3) Nothing in this chapter shall be deemedto impair the rights of creditors of the seller :

(a) Under- the provisions of ch 409; or(b) Where identification- to the contract or

delivery is made not in current course of tradebut in satisfaction . of or as security forr a preex-isting claim for money ;security orthe like and ismade under circumstances which under anyrule of laww of thee state where the goods aresituated would apart from this chapter consti -

acceptance of a prior bid the auctioneer may inhis discretion reopen the bidding or declare thegoods sold under the bid on which the hammerwas falling .

(3) Suchh a sale is with reserve unlesss thegoods are in explicit terms put up withoutreserve . . In an auction with reserve the auction-eer may withdraw the goods at any time until heannounces completion of the sale . In an auc-tion without reserve, after the auctioneer callsfor bids on an article or lot, that article or lotcannot be withdrawn unless no bid is madewithin a reasonable time . . In either casee a biddermay retractt his bid until the auctioneer's an-nouncement of completion of thee sale, but abidder's retraction doess not revive any previousbid . .

(4) If'the auctioneer knowingly receives a bidon the seller's behalf' or the seller makes orprocures such a bid, and notice has not beengiven that liberty for such bidding is reserved,the buyer may at his option avoid the sale ortake the goods at the price of'the last good faithbid prior to the completion of the sale . This'subsection shall not apply to any bid at a forcedsale ; :

TITLE, CREDITORS AND GOOD FAITHPURCHASERS .

402 .401 Passing of title ; reservation for se-cur i ty; limited application of this section. Eachprovision of this chapter with regard to therights, obligations and remedies of the seller,the buyer, purchasers or other third partiesapplies irrespective of title to the goods exceptwhere the provisionn refers to such title, . Insofaras situations are not covered by the other provi-sions of this chapter and matters concerningtitle become material the following rules apply :

(1)` Title to goods cannott pass underr a con-tract for sale prior to their identification to thecontract (s 402 ;501), and unless otherwise ex-plicitly agreed the buyer acquires by their iden-tification a special property as limited by chs .401 to 409 Any retention or reservation by theseller of the title (property) in goods shipped ordelivered to the buyer is limited in effect to areservation of a security interest . . Subject tothese provisions and to ch . 409, title to goodspasses from the seller 'to the buyer in anymanner and on any conditions explicitly agreedon by the parties .

(2) Unless' otherwise explicitly agreed titlepasses to the buyer at the time and place atwhich thee seller completes his performance withreference to the physical delivery of the goods,despite any reservation of a security interest andeven though a document of title is to be deliv-ered at a different time or place ; and in particu-

4183 SALES 402.402


402.502 Buyer ' s right to goods on seller ' sinsolvency. (1) Subject to sub . (2) and eventhough the goods have not been shipped a buyerwho has paid a part or all of the price of'goodsin which he has a special property under r s .402,501 may on making and keeping good atender of any unpaid portion of their pricerecover them from the seller if the seller be-comes insolvent within 10 days after receipt ofthe first instalment on their price .

(2) If the identification creating his specialproperty has been made by the buyer he ac-quires the right to recover the goods only if theyconform to the contract for sale .

402.503 Manner of seller ' s tender of deliv-ery. (1) Tender of delivery requires that theseller put and hold conforming goods at thebuyer's disposition and give the buyer any noti-fication reasonably necessary to enable him totake delivery . The manner, time and place fortender are determined by the agreement and thischapter, and in particular :

(a) Tender must be at a reasonable hour, andifit is of goods they must be kept available forthe period reasonably necessary to enable thebuyer to take possession; but

(b) Unless otherwise agreed the buyer mustfurnish facilities reasonably suited to the receiptof the goods.. .

(2) Where the case is within s . . 402 .504 re-specting shipment tender requires that the sellercomply with itss provisions . : .

(3) Where the seller is required to deliver at aparticular destination tender requires that hecomply with sub . . (1) and also in any appropri-ate case tender documents as described in subs . .(4) and (5) .

402.501 Insurable interest in goods; mannerof identification of goods . (1) The buyer obtainsa special property and an insurable interest ingoodss by identification of existing goods asgoods to which the contract refers even thoughthe goods so identified are.: nonconforming andhehas an option to return or reject them .. Suchidentification can be made at any time and inany manner explicitly agreed to by the parties .In the absence of explicit ., agreement, identifica-iion occurs :

(a) When the contract is made ifit is for thesale of goods already existing and identified ;

(b) If the contract is for'the sale of futuregoods other than those described in par . (c),when goods are shipped, marked or otherwise

402.402 SALES

Lute the transaction a fraudulent transfer orvoidable pref'er'ence ..

402 .403 Power to transfer ; good faithpurchase of goods; "entrusting" . (1) A pur-chaser of goods acquires all title which histransferor had or had power to transfer exceptthat a purchaser of 'a limited interest acquiresrights only to the extent of' the interestpurchased. A person with voidable title haspower to transfer a good title to a good faithpurchaser for value When goods have beendelivered under a transaction of purchase thepurchaser has such power even though :

(a) The transferor was deceived as to theidentity of the purchaser ; or

(b) The delivery was in exchange for a checkwhich is later dishonored; or

(c) It was agreed that the transaction was tobe a "cash sale" ; or

(d) The delivery was procured through fraudpunishable as larcenous under the criminal law .

(2) Any entrusting of possession of goods to amerchant who deals in goods of'that kind giveshim power to transfer all rights of the entrusterto a buyer: in ordinary course of business .

(3) "Entrusting" includes any delivery andany acquiescence in retention of possessionregardless of any condition expressed betweenthe parties to the delivery or acquiescence andregardless of whether the procurement of theentrusting or the possessor's disposition of thegoods have been such as to be larcenous underthe criminal law.

( 4) The rights of other purchasers of goodsand of lien creditors are governed by chs . 406,407 and 409 .

Buyer in ordinary course of business under article 9 of theuniform commercial code (and related matters) . Skilton,1974 WLR I

PERFORMANCE . .

4184

designated by the seller as goods to which thecontract refers;

(c) When the crops are planted or otherwisebecome growing crops or the young are con-ceived ifthe contract is for the sale of unbornyoung to be born within 12 months after con-tracting or for the sale of crops to be harvestedwithin 12 months or, the next normal harvestseason after contracting whichever' is longer

(2) The seller retains an insurable interest ingoods so long as title to or any security interestin the goods remains in him and where theidentification is by thee seller alone he may untildefault or insolvency or notification to thebuyer that the identification is final substituteother goods for those identified . .

(3) Nothing in this section impairs any insur-able interest recognized under any other statuteor rule of raw


402.506 Rights of financing agency. (1) Afinancing agency by paying or purchasing forvalue a draft which relates to a shipment ofgoods acquires to the extent of the payment orpurchase and in addition to its own rights under,the draft and any document of title securing itany rights of the shipper in the goods includingthe right to stop delivery and the shipper's rightto have the draft honored by the buyer .

(2) The right to reimbursement of"a financingagency which has in good faith honored orpurchased the draft under commitment to orauthority from the buyer is not impaired bysubsequent discovery of defects with referenceto any relevant document which was apparentlyregular on its face . . .

402 .507 . Effect of seller ' s tender ; delivery oncondition . (1) Tender of delivery is a conditionto the buyer's duty to accept the goods and,unless otherwise agreed, to his duty to pay forthem. Tender entitles the seller to acceptance ofthe goods and to payment according to the.contract..

(2) Where payment is due and demanded onthe delivery to the buyer' of'goods or documentsof title, his right as against the seller to retain ordispose. of them is conditional upon his makingthe payment due ..

402.508 Cure by seller of improper tender ordelivery; replacement. (1) Where any tender' ordelivery by the seller is rejected because noncon-forming and the time for performance has notyet expired, the seller may seasonably notify thebuyer of his intention to cure and may then

402 .504 Shipment by seller . (1) Where theseller is required' or authorized to send thegoods to the buyer' and the contract does notrequire him to deliver them at a particulardestination, then unless otherwise agreed hemust :

(a) Put the goods in the possession of such acarrier and make such a contract for theirtransportation as may be reasonable havingregard to the nature of the goods and other,circumstances of the case ; and

(b) Obtain and promptly deliver or tender indue form any document necessary to enable thebuyer to obtain possession of the goods orotherwise required by the agreement or byusage of trade; and

(c) Promptly notify the buyer' of theshipment..

(2) Failure to notify the buyer under sub . (1)(c) or to make a pr'oper' contract under sub . . (1)(a) is a ground for rejection only if' materialdelay or loss ensues; .

402.505 Seller ' s shipment under reserva-tion. (1) Where the seller has identified goods tothe contract by or before shipment :

4185

(4) Where goods are in the possession of abailee and are to be delivered without beingmoved :

(a) Tender requires that the seller eithertender a negotiable document of title coveringsuch goods or procure acknowledgment b y thebailee of the buyer's right to possession of thegoods ; but

(b) Tender to the buyer of a nonnegotiabledocument of title or' of' a wri tten direction to thebailee to deliver is sufficient tender unless thebuyer seasonably objects, and receipt by thebailee of' noti fication of' the buyer's rights fixesthose rights as against the bailee and all thirdpersons; but risk of' loss of ' the goods and of anyfailure by the bailee to honor the nonnegotiabledocumentt of title : or to obey the direction re-mains on the seller until the buyer has hadd areasonable time to present the document ordirection, and a refusal by the bailee to honorthee documentt or to obey the direction defeatsthe tender .

(5) Where the contract requires the seller todeliver documents :

(a) He must tender all such documents incorrect form, except as provided in s 402 .323(2) with respect to bills of lading in a set ; and

(b) Tender through customary bankingchannels is sufficient and dishonor of a draftaccompanying the documents constitutes non-acceptance or rejection .

SALES 402 .508

(a) His procurement of a negotiable bill oflading to his own order or otherwise reserves inhim a security interest in the goods . . His pro-curement of ' the bill to the order of a financingagency or of the buyer indicates in addition onl ythe seller's expectation of transferr ing that in-terest to the person named ..

(b) A nonnegotiable bill of ' lading to himself 'or his nominee reserves possession of the goodsas security but except , in a case of conditionaldelivery (s . 402 .507 (2)) a nonnegotiable bill oflading naming the buyer as consignee reservesno security interest even though the seller re-tains possession of the bill of lading ,

(2) When shipment by the seller with reserva-tion of a secur i ty interest is in violation of thecontract for sale it constitutess an impropercontract for transportation within s . 402 :504but impairs neither the rights given to the buyerby shipment andd identification of the goods tothe contract nor the seller's powers as a holder,of a negotiable document ..


within the contract time make a conformingdelivery.

(2) Where the buyer rejects a nonconformingtender which the seller had reasonable groundsto believe would be acceptable with or withoutmoney allowance the seller may if he seasonablynotifies the buyer, have a further reasonabletime to substitute a conforming tender :

402 .509 Risk of loss in the absence ofbreach . (1) Where the contract requires orauthorizes the seller to ship the goods by car rier :

(a) If it does not require him to deliver themat a particular destination, the risk of losspasses to the buyer when the goods are dulydelivered to the carrier even though the ship-ment is under reservation (s . 402 . .505) ; but

(b) Ifit does require him to deliver them at aparticular destination and the goods are thereduly tendered while in the possession of the'carrier; the risk of loss passes to the buyer whenthe goods are there duly so tendered as to enablethe buyer to take delivery .

(2) Where the goods are held by a bailee to bedelivered without being moved; the risk of losspasses to the buyer ;

(a) On his receipt of a negotiable documentof title covering the goods ; or

(b) On acknowledgment by the bailee of thebuyer's right to possession of the goods; or

(c) After his receipt of a nonnegotiable docu-ment of title or other written direction to de-liver, as provided in s .402 ..503 (4) (b) .

(3) 'In any case notwithin sub .. : (1) or (2), therisk of loss passes to the buyer on his receipt ofthe, goods ifthe seller is a merchant ; otherwisethe risk passes to the buyer on tender ofdelivery .

(4) The provisions of this section are subjectto contrary agreement of the parties and to s ..402.:327 on sale on approval and s .. 402.5]0 oneffect of breach on risk of loss

402.510 Effect of breach on risk of loss.. (1)Where a tender or delivery of goods so fails toconform to the contract as to give a right ofrejection the risk of their loss remains on theseller until cure or acceptance . .

(2) Where the buyer rightfully revokes ac-ceptance he may to the extent of any deficiencyin his effective insurance coverage treat the riskof loss as having rested on the seller fromm thebeginning .:

(3) Where the buyer as to conforming goodsalready identified to the contract for sale repu-diates or is otherwise in breach before risk oftheir loss has passed to him, the seller may to theextent of any deficiency in his effective insur-

402.513 Buyer ' s right to inspection of goods .(1) Unless otherwise agreed and subject to sub ..(3), where goods are tendered or delivered oridentified to thee contract for sale, the buyer hasa right before payment or acceptance to inspectthem at any reasonable place and time and inany reasonable manner' . . When the seller isrequired or authorized to send the goods to thebuyer, the inspection may be after their arrival ..

(2) Unless otherwise agreed, expenses of in-spectionmust be borne by the buyer but may berecovered from the seller if the goods do notconform and are rejected .

(3) Unless otherwise agreed and subject to s ..'402 . .321 (3) on C .L.F . contracts, the buyer is notentitled to inspect the goods before payment ofthe price when the contract provides:

(a) For delivery "C .O.D." or on other liketerms; or

(b) For payment against documents of title,except whet e such payment is due only after thegoods are to become available for inspection .

(4) A place or method of inspection fixed bythe parties is presumed` to be 'exclusive butunless otherwise expressly agreed it does notpostpone identification or shift the place for'

402.508 SALES 4186

ance coverage treat the risk of loss as resting onthe buyer for a commercially reasonable time ..

402 .511 Tender of payment by buyer; pay -ment by check . (1) Unless otherwise agreedtender of payment is a condition to the seller'sduty to tender and complete any delivery .

(2) Tender of payment is sufficient whenmade by any means or in any manner current inthe ordinary course of business unless the sellerdemands payment in legal tender and gives anyextension of time reasonably necessary to pro-cure it .

(3) Subject to s. 403,802 on the effect of aninstrument on an obligation, payment by checkis conditional and is defeated as between theparties by dishonor of', the check on duepresentment

402 .512 Payment by buyer before inspec-tion: (1) Where the contract requires paymentbefore inspection nonconformity of the goodsdoes not excuse the buyer from so makingpayment unless :

(a) The nonconformity appears without in-spection ; spection; or,

(b) Despite tender of'the required documentsthe circumstances would justify injunctionagainst honor under' s . 405 ..114 . .

(2) Payment pursuant to sub . . (1) does notconstitute an acceptance of goods or impair thebuyer's right to inspect or any of his remedies .


402 .601 Buyer ' s rights on improper delivery .Subject to. s. 401612 on breach in instalmentcontracts and unless otherwise agreed under ss .402 718 and 402, 719 on contractual limitationsof'remedy, if the goods or the tender of deliveryfail in any respect to conform to the contract,the buyer may :

(1 ) Reject the whole; or(2) Accept the whole ; or(3) Accept any commercial unit or units and

reject the rest

402.602 Manner and effect of rightful rejec-tion . (1) Rejection of goods must be within areasonable time after, their delivery or tender . Itis ineffective unless the buyer seasonably noti-fies the seller :

(2) Subject to ss.. 402..603 and 402,604 onrejected goods :

(a) After rejection any exercise of ownershipby the buyer-with respect to any commercialunit is wrongful as against the seller; and

(b) If' the buyer has before rejection takenphysical possession of goods in which he doesnot have a security interest under s ., 402 .711(3),he is under a duty after rejection to hold themwith reasonable care at the seller's disposition

402.605 Waiver of buyer 's objections by fail-ure to particularize. (1) The buyer's failure tostate in connection with rejection a particulardefect which is ascertainable by reasonable in-spection precludes him from relying on theunstated defect to justify rejection or to estab-lish breach:

(a) Where the seller could have cured it if'stated seasonably; or

(b) Between merchants when the seller, hasafter rejection made a request in writing for' a

4187

deliver y or for pas sing the risk of loss : If'compli-ance becomes impossible, inspection shall be asprovided in this section unless the place ormethod fixed was clearl y intended as an indis-pensable condition failure of which avoids thecontract.

402 .514 When documents deliverable on ac-ceptance; when on payment . Unless otherwiseagreed documents against which a draft isdrawn are to be delivered to the drawee onacceptance of'the draft if'it is payable more than3 days after presentment; otherwise, only onpayment

402.515 = . Preserving evidence of goods indispute. In furtherance of the adjustmentt ofany claim or dispute :

(1) Either party on reasonable notification tothe other and for the purpose of ascertaining thefacts and preserving evidence has the right toinspect, test and sample the goods includingsuch of them as may .be in the possession orcontrol of the other; and

(2) The parties may agree to a third partyinspection'or survey to determine the conform-ity or condition of'the goods and may agree thatthe findings shall be binding upon them in anysubsequent litigation or adjustment . .

BREACH, REPUDIATION AND EXCUSE. .

SALES 402.605

for a time sufficient to permit the seller toremove them; but

(c) The buyer has no further obligations withregard to goods rightfully rejected .

(3) The seller's rights with respect to goodswrongfully rejected are governed by s . 402,703on seller's remedies in general .

Where seller refused to accept return of a pump upon no-tice of breach by the buyer, and buyer thereafter used thepump for 3 months, the buyer ' cannot recoverr for breach ofwarranty Concrete Equip .. Co .. v . Smith Contract Co, Inc .358 F Supp 1137 .

402.603 Merchant buyer' s duties as to right -fully rejected goods . (1) Subject to any securityinterest in the buyer (s 402 .711 (3)), when theseller has no agent or place of business at themarket of rejection a merchant buyer is under aduty after rejection of goods in his possession orcontrol to follow any reasonable instructionsreceived from thee seller with respect to thegoods and in the absence of such instructions tomake reasonable efforts to sell them for theseller's account if' they are perishable orthreaten to decline in value speedily . Instruc-tions are not reasonable if on demand indem-nity for expenses is not forthcoming,,

(2) When the buyer sells goods under sub, (1),he is entitled to reimbursement from the selleror out of the proceeds for reasonable expensesof caring for and selling them, and if the ex-penses include no selling commission then tosuch commission as is usual in the trade or ifthere is none :to a reasonable sum not exceeding10 per cent of the gross proceeds .

(3) In complying with this section the buyer isheld only to good faith and good faith conducthereunder is neither acceptance nor conversionnor the basis of an action for damages . .

402.604 . Buyer 's options as to salvage ofrightfully rejected goods . Subject to s. 402, 603on perishables, if'the seller gives no instructionswithin a reasonable time after notification ofrejection the, buyer-may store the rejected goodsfor the seller's accountt or reship, them to him orresell them for the seller's account with reim-bursement as provided in s .. 402.60.3 .. Suchaction is not acceptance or conversion .


(a) He may give his seller written notice of thelitigation . If the notice states that the seller maycome in and defend and that ifthe seller doesnot do so he will be bound in any action againsthim by his buyer by any determination of factcommon to the 2 litigations, then unless theseller after seasonable receipt of the notice doescome in and defend he is so bound

(b) If the claim is one for infringement or thelike (s . 402 312 (3)) the original seller maydemand in writing that his buyer turn over tohim control of the litigation including settle-ment or else be barred from any remedy overand if' he also agrees to bear all expense and tosatisfy any adverse judgment, then unless thebuyer after seasonable receipt of the demanddoes.turn over control the buyer is so barred :

(6) Subsections (3), (4) and (5) apply to anyobligation of'the buyer to hold the seller harm-less against infringement or the like (s . 402, 312(3))

Notice of breach of warranty is a condition precedent torecovery in an action for wrongful death allegedly caused bya defective seat belt, but the failure to plead such notice mustbe raised by demurrer Schnabl v.. Ford Motor Co . 54 W(2d) 345, 195 NW (2d) 602, 198 NW (2d) 161 .

Under facts of case, 2-month delay in giving notice wasnot unreasonable . Paulson v Olson Implement Co ., Inc 10'7W (2d) 510, 319 NW (2d) 855 (1982). .

402.608 Revocation of acceptance in wholeor in part . (1) The buyer, may revoke his accept-ance ofa . lot or commercial unit whose noncon-formity substantially impairs its value to him ifhe has accepted it:

(a) On the reasonable assumption that itsnonconformity would be cured and it has notbeen seasonably cured; or

(b) Without discovery of such nonconform-ity if his acceptance was reasonably inducedeither by the difficulty of discovery before ac-ceptance or by the seller'ss assurances . . .

(2) Revocation of acceptance must occurwithin a reasonable time after the buyer discov-ers or should have discovered the ground for itand before any substantial change in conditionof the goods which is not caused by their owndefects: It is not `effective until the buyernotifies the seller of it .''

(3) A buyer who so revokes has the samerights and duties` with regard to the goodsinvolved as if he had rejected them .

402 . 609 Right to adequate assurance of per -formance. (1) A contract for sale imposes anobligation on each party that the other's expec-tation of receiving due performance will not beimpaired.: When reasonable grounds for insecu-rity arise with respect to the performance ofeither party the other may in writing demandadequate assurance of due' performance anduntil he receives such assurance may if'commer-

. 402 .607 . Effect of acceptance ; notice ofbreach ; burden of establishing breach afteracceptance ; notice of claim or litigation toperson answerable over . (1) The buyer mustpay at the contract rate for any goods accepted . .

(2) Acceptance of goods by the buyer pre-cludes rejection of` the goods accepted and if'made with knowledge of a nonconformity can-not be revoked because of it unless the accept-ance was on the reasonable assumption that thenonconformity would be seasonably cured butacceptance does . nott of itselfimpair anyy otherremedy provided by this chapter fornonconformity .

(3) Where a tender has been accepted :(a) The buyer must within a reasonable time

after he discovers or should have discoveredany breach notify the seller of breach or bebarred from any remedy; and

(b) If the claim is one for infringement or thelike (s . 402 .312 (3)) and the buyer is sued as aresult of such a breach he must so notify theseller within a reasonable time after he receivesnotice of the litigation or be barred from anyremedy over for liability established by thelitigation . .

(4) The burden is on the buyer to establishany breach with respect to the goods accepted . .

(5) Where the buyer is sued for breach of awarranty or, other obligation for which his selleris `answerable over :

402.605 SALES

full and final written statement of all defects onwhich the buyer proposes to rely

(2) Payment against documents made with-out reservation of`rights precludes recovery ofthe payment for defects apparent on the face ofthe documents .

402 :606. What constitutes acceptance ofgoods . (1) Acceptance of goods occurs whenthe buyer :

(a) After a reasonable opportunity to inspectthe goods signifies to the seller that the goodsare conforming or that he will take or retainthem in spite of their nonconformity; or

(b) Fails to make an effective rejection . (s . .402 602 (1)), butt such acceptance does not oc-cur until the buyer has had a reasonable oppor-tunity to inspect them ; or

(c) Does any act inconsistent with the seller'sownership; but if such act is wrongful as againstthe seller it is an acceptance only if ratified byhim

(2) Acceptance of a part of any commercialunit is acceptance of that entire unit .

Where buyer accepts goods, seller need not prove thatgoods were not defective in action to recover purchase price .Central Soya Co, Inc ; v, Epstein Fisheries, I nc.. 676 F (2d)939 (1982) .

4188


dally reasonable suspend any performance forwhich he has not already received the agreedreturn ..

(2) Between merchants the reasonableness ofgrounds for insecurity and the adequacy of anyassurance offered shall be determined accord-ing to commercial standards,

(3) Acceptance of any improper deliveryy orpayment does not prejudice the aggrievedparty's right to demand adequate assurance offuture performance,

( 4) After receipt of ',a justified demand failureto provide within a reasonable time not exceed-ing :30 days such assurance of due performanceas is adequate under the circumstances of theparticular case is a repudiation of the contract . .

402.610 Anticipatory repudiation. When ei-ther party repudiates the contract with respectto a performance not yet due the loss of whichwilll substantially impair the value of the con-tract to the other, the aggrieved party may :

(1) For a commercially reasonable timeawait performance by the repudiating party ; or

(2) Resortt to anyy remedy for breach (ss402.'703 of 402 711), even though he, has noti-fied the repudiating party that he would awaitthe latter's performance and has urged retrac-tion; and

(3) In either case. suspend his own perform-ance or proceed in accordance with s . 402,704on the seller's rightt to identify goods to thecontract notwithstanding breach or : to salvageunfinished goods .

402.611 Retraction of anticipatory repudia -tion. (1) Until the repudiating party's next per-focmance is due he can retract his repudiationunless the aggrieved party has since the repudia-tion canceled or materially changed his positionor otherwise indicated that he considers therepudiation final .

(2) Retraction may be by any methodd whichclearly indicates to the aggrieved party that therepudiating party intends to perform, but mustinclude any assurance justifiably demandedunder s .; 402..609..

(3) Retraction reinstates the repudiatingparty's rights under the contract with due ex-ruse and allowance to the aggrieved party forany delay occasioned by the repudiation,

402.612 "Instalment contract" ; breach. (1)An "instalment contract" is one which requiresor`authorizes the delivery of'goods in separatelots to be separately accepted, even though thecontract contains a clause "each delivery is aseparate contract" or its equivalent ;

402 .614 . Substituted performance . (1) Wherewithout fault of either party the agreed berth-ing, loading, or unloading facilitiess fail or anagreed type of carrier becomes unavailable orthe agreedd manner of deliveryy otherwise be-comes commercially impracticable butt a com-mercially reasonable substitute is available,such substitute performance must be tenderedand accepted .

(2) If the agreed means or manner of pay-ment fails because of domestic or foreign gov-ernmental regulation, the seller may withholdor, stopdelivery unless the buyer provides ameans or manner of payment which is commer-cially a substantial equivalent. If delivery hasalready been taken, payment by the means or inthe manner provided by the regulation dis-charges the buyer's obligation unless the regula-tion is discriminatory, oppressive or predatory :

402.615 Excuse by failure of presupposedconditions. Except so far' as a seller may have

4189 SALES 402.615-

(2) The buyer may reject any instalmentwhich is nonconforming if the nonconformitysubstantially impairs the value of that instal-ment and cannot be cured or if the nonconfocrn-ity is a defect in the required documents; but if'the nonconfbrrnity does not fall within sub . . (3)and the seller gives adequate assurance of itscure thebuyer must accept that instalment .

(3) Whenever nonconformity or default withrespect to one or' more instalments substantiallyimpairs the value of the whole contract there is abreach of the whole; but the aggrieved partyreinstates the contract if he accepts a noncon-forming instalment without seasonably notify-ing of cancellation or if he brings an action withrespect only to past instalments or demandsperformance as to future instalments

402 . 613 Casualty to identified goods . Wherethe contract requires for its performance goodsidentified when the contract is made, and thegoods `suffer casualty without fault of eitherparty before the risk of loss passes to the buyer,or in a proper case under a "no arrival, no sale"term (s . 402..324) then:

(1) If'the loss is total the contract is avoided ;and

(2) If the loss is partial or the goodshave sodeteriorated as no longer to conform to thecontract the buyer may nevertheless demandinspection and at his option either treat thecontract as avoided or accept the goods withdue allowance from the contract price for thedeterioration or the deficiency in quantity butwithout further right against the seller.


all goods theretofore delivered under the con-tract, and stop delivery under s . . 402 ..705 ..

(2) Where the seller discovers that the buyerhas received goods on credit while insolvent hemay reclaim the goods upon demand madewithin 10 days after the receipt, but if misrepre-sentation of solvency has been made to theparticular seller in writing within 3 monthsbefore delivery the 10-day limitation does notapply . . Except as provided in this subsection theseller may not base a right to reclaim goods onthe buyer's fraudulent or, innocent misrepresen-tation of solvency or of intent to pay ..

(3) The seller's right to reclaim under sub . . (2)is'subject to the rights of a buyer in ordinarycourse or other good faith purchaser under s..402.403. Successful reclamation of goods ex-cludes all other remedies with respect to them . .

Holder of security interest in after-required collateralqualifies as a'good faith purchaser under (3) . H ouse of Stain-less v Marshall & I lsley Bank, 75 W (2d) 264, 249 NW (2d)561 .Where a bank as the transferee of seller did not rely on a

balance sheet which misrepresented insolvency and had noknowledge of the facts prior to the sale or delivery, it cannotexercise the seller's right of reclamation In re Hardin, 458 F(2d) 9:3s

402.703 Seller ' s remedies in general. Wherethe buyer wrongfully rejects or revokes accept-ance of'goods or, fails to make a payment due onor before delivery or repudiates with respect toa part or the whole, then with respect to anygoods directly affected and, ifthe breach is ofthe whole contract (s :. 402 . :612), then also withhrespect to the whole undelivered balance, theaggrieved seller may :

(1) Withhold delivery of such goods ;(2) Stop delivery by any bailee as provided in

s .. 402,705;(3) Proceed under s . . 402,704 respecting goods

still unidentified to the contract;(4) Resell and recover damagess as provided

in s. 402 .706;(5)' Recover damages for nonacceptance (s .

402.708) or in a proper case the price (s ..402 . .709) ;

(6) Cancel„

402 .704 Seller's right to identify goods to thecontract notwithstanding breach or to salvageunfinished goods . (1) An aggrieved seller unders .. 402 .70.3' may :

(a) Identify to the contract conforming goodsnot already identified if'at the time he learned ofthe breach they are in his possession or control ;

(b) Treat as the subject of resale goods whichhhave demonstrably been intended for the par tic-ular• contractt even thoughh those goods areunfinished ..

(2) Where the goods are unfinished an ag-grieved seller may in the exercise of'reasonable

402.616 Procedure on notice claiming ex-ruse. (1) Where the buyer receives notificationof a material or indefinite delay or an allocationjustified under' s: 402 615 he may by writtennotification to the seller as to any deliveryconcerned, and where the prospective defi-ciency, substantially impairs the value of thewhole contract under s 402,612 relating tobreach of instalment contracts, then also as tothe whole :

(a) Terminate and thereby discharge anyunexecuted portion of the contract; or

(b) Modify the contract by agreeing to takehis available quota in substitution ..

(2) It after receipt of such notification fromthe seller, `the buyer fails so to modify thecontract within a reasonable time not exceeding30 days the contract lapses with respect to anydeliveries affected .

REMEDIES .

402.701 Remedies for breach of collateralcontracts not impaired . Remedies forr breach ofany obligation or promise collateral or ancillaryto a contract for sale are not impaired by theprovisions of this chapter .

402.702 Seller 's remedies on discovery ofbuyer 's insolvency . (1) Where the seller discov-ers the buyer to be insolvent he may refusedelivery exceptt for, cash including payment for

402.615 SALES

assumed a greater obligation and subject to s .402,614 on substituted performance :

(1) Delay in delivery or nondelivery in wholeor in part by a seller who complies with subs . . (2)and (3) is not a breach of his duty under acontract for sale if ' perfoirnance as agreed hasbeen made impracticable by the occurrence of acontingency the nonoccurrence of which was abasic assumption on which the contract wasmade or by compliance in good faith with anyapplicable foreign or domestic governmental :regulation or order whether or not it laterproves to be invalid .

(2) Where the causes mentioned in sub. (1)affect only a part of' the seller's capacity toperform, he must allocate production and deliv-eriesamong his customers but may at his optioninclude regular customers not then under con-tract as well as his own requirements for furthermanufacture . He may so allocate in any man-ner which is fair, and reasonable„

(3) The seller must notify the buyer season-ably that there will be delay ornondelivery and,when allocation is required under sub .. (2), ofthe estimated quota thus made available for thebuyer

4190


public or private sale including sale by way ofone or more contracts to sell or of identificationto an existing contract of the seller. Sale may beas a unit or in parcels and at any time and place ,and on any terms but everyy aspect of the saleincluding the method, manner, time, place andterms must be commercially reasonable . Theresale must be reasonably identified as referringto the broken contract, but it is not necessarythat the goods be in existence or that any or allof them have been identified to the contractbefore the breach .

(3) Where the resale is at private sale the sellermust give the buyer reasonable notification ofhis intention to resell,

(4) Where the resalee is at public sale :(a) Only identified goods can be sold except

where there is a recognized market for a publicsale of futures in goods of the kind ; and

(b) It must be made at a usual place or,market' for public sale if' one is reasonablyavailable and except in the case of goods whichare perishable or threaten`io decline in valuespeedily the seller must give the buyer reason-able notice of the time and place of the resale ;and

(c) If'the goods are not to be within the viewof those attending the sale the notification ofsale must state the place where the goods arelocated and provide for their reasonable inspec-tion by prospective bidders; and

(d) The seller may buy ..(5) A purchaser who buys in good faith at a

resale takes the goods free of any rights of theoriginal buyer even though the seller fails tocomply with one or more of'the requirements of"this section ..

(6), The seller is not accountable to the buyerfor any profit made on any resale . A person inthe position of a seller (s., 402 ..707) or a buyerwho has rightfully rejected or, jjustifiably're-voked acceptance must account for any excessover the amount of his security interest, asdefined in s . . 402 :.711 (.3) .

402 .707 "Person in the position of a seller" .(1)'A "person in the position of a seller" in-cludes as against a principal an agent who haspaid or become responsible for the price ofgoods on behalf' of his principal or anyone whootherwise holds a security interest or, other rightin goods similar to that of a seller,

(2) A person in the position of a seller may asprovided in this chapter withhold or stop deliv-ery (s 402 ..705) .-and . . resell (s . 4Q 706) andrecover incidental damages (s . 402. .710) .

402.708 Seller' s- damages for nonaccept-ance or repudiation . (1) Subject to sub . . (2) and

commercial judgment for the, purposes ofavoiding loss and of effective realization eithercomplete the manufacture and wholly identifythe goods to the contract or ceasee manufactureand resell for scrap or salvagee value or proceedin any other reasonable manner..

402 .705 Seller 's stoppage of delivery intransit or otherwise . (1) The seller may stopdelivery of goods in the possession of a carrieror other bailee when he discovers the buyer, tobe insolvent (s . 402, 702) and may stop deliveryof'cacload, truckload, planeload or larger ship-ments of express or freight when the buyerrepudiates or fails to make a payment duebefore delivery or if for any other reason theseller' has a right to withhold or reclaim thegoods.

(2) As against such buyer the seller, may stopdelivery until :

(a) Receipt of the goods by the buyer; or(b) Acknowledgment to the buyer by any

bailee of' the goods except a carrier, that thebailee holds the goods for the buyer; or

(c) Such acknowledgment to the buyer by acarrier by reshipment or as warehouse keeper;OT ',

(d) Negotiation to the buyer of any negotia-ble-document of title covering the goods .

(3) (a) To stop delivery the seller must sonotify as to enable the bailee by reasonablediligence to prevent delivery of the goods . .

(b) After such notification the bailee musthold and deliver the goods according to thedirections of the seller but the seller is liable tothe bailee for any ensuing charges or damages . .

(c) If a negotiable document of title has beenissued for goods the bailee is not obliged to obeya notification to stop until surrender of thedocument..

(d) A carrier who has issued a nonnegotiablebill of lading is not obliged to obey a notifica-tion to stop received from a person . other- thanthe consignor

History: 1983 a 500 s 43 .

402 .706 Seller ' s ,resale including contractfor resale . (1) Under the conditions stated in s .402,703 on seller's remedies, the seller mayresell the goods concerned or the undeliveredbalance thereof.. Where the. resalee is made ingood faith and in a commercially reasonablemanner the seller may recover the differencebetween the resale price and the contract pricetogether with : any, incidental damages allowedunder s., 402 . .710, but less expenses : savedd inconsequence of the,buyer's breach . .

(2) Except as otherwise provided in sub . (3)or unless otherwise, agreed resale may be, at

4191 SALES 402 .708


402 .711 Buyer 's remedies in general ;buyer' s security interest in rejected goods . (1)Where the seller fails to make delivery or repu-diates or the buyer rightfully rejects or,justifia-bly revokes acceptance then with respect to anygoods involved, and with respect to the whole if'the breach goes to the whole contract (s .402.612); the buyer may cancel and whether ornot he has done so may in addition to recover-ing so much of the price as has been paid :

(a) "Cover" and have damages under s .402:712 as to all the goods affected whether ornot they have been identified to the contract ; or

(b) Recover damages for nondelivery as pro-vided in s, 402 ..713 ..

(2) Where the seller fails to deliverr or repudi-ates the buyer may also:

(a) If the goods have been identified recoverthem as provided in s.. 402 . .502; or

(b) In a proper case obtain specific perform-ance or replevy the goods as provided in s .402.716 .

(3) On rightful rejection or ;justifiable revoca-tion of acceptance a buyer has a security interestin goods in his possession or control for anypayments made on their price and any expensesreasonably incurred in their inspection, receipt,transportation, care and custody and may hold :such goods and resell them in like manner as anaggrieved seller, (s .. 402 ..706) .

402.712 "Cover" ; buyer 's procurement ofsubstitute goods . (1) After a breach within s .402.711 the buyer may "cover" by making ingood faith and without unreasonable delay anyreasonable purchase of or contract to purchasegoods in substitution for those duee from theseller..

(2) The buyer may recover from thee seller asdamages the difference between the cost ofcover and the contract price together with anyincidental or consequential damages as definedin s. 402 . .715, but less expenses saved

: in rouse-e quence of the seller's breach..(3) Failure of the buyer to effect cover within

this section does not bar' him from any otherremedy .

402.713 Buyer 's damages for nondelivery orrepudiation. (1) Subject to s. 402,723 with re-spect to proof of market price, the measure ofdamages for nondelivery or repudiation by theseller is the difference between the market priceat the time when the buyer, learnedd of the breachand the contract price together with any inci-dental and consequential damages provided ins. 402 . .715, but less expenses saved in conse-quence of the seller's breach .

402 .709 Action for the price. (1) Whenn thebuyer failss to pay the price as it becomes due theseller may recover, together with any incidentaldamages under s . 402 . .710, the price :

(a) Of goods accepted or of conformingggoods lost or, damaged within a commerciallyreasonable time after risk of their loss haspassed to the buyer ; and

(b) Of goods identified to the contract if theseller is unable after reasonable effort to resellthemm at a reasonable price or the circumstancesreasonably indicate that such effort will beunavailing .

(2) Where the seller sues for the price he musthold for the buyer any goods which have beenidentified to the contract and are still in hiscontrol except that if resale becomes possible hemay resell them at any time prior to the collec-tion of the ,judgment .. The net proceeds of anysuch resale must be credited to the buyer andpayment of the ,judgment entitles him to anygoods not resold. .

(3) After the buyer has wrongfully rejected orrevoked acceptance of'the goods or, has failed tomake a payment due or, has repudiated . (s..402 . .610),, a seller, who is held not entitled to theprice under this section shall nevertheless beawarded damages for nonacceptance under, s ..402:708 :

402 .710 Seller ' s incidental damages. Inci-dental damages : to an aggrieved seller includeany commercially reasonable charges, expensesor commissions incurred in stopping delivery,in the transportation, care and custody of goodsafter the buyer's breach, in connection withreturn or resale of the goods or otherwise result-ing from the breach .

402.708 SALES

to s . . 402 . . 72.3 with respectto proof of marketprice the measure of damages for nonaccept-ance or repudiation by the buyer is the differ-ence between the market price at the time andplace forr tender' and the unpaid contract pricetogether with any incidental damages providedin s . 402..710, but less expenses saved in conse-quence of the buyer' s breach ..

(2) If the measure of damages provided insub . . (1) is inadequate to put the seller in as gooda position as performance would have donethen the measure of damages is the profit (in-cluding reasonable overhead) which the sellerwould have made from full performance by thebuyer , together with any incidental damagesprovided in s . . 402 . 710, due allowance for ' costsreasonably incurred and, due credit for pay-ments or proceeds of resale .

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402 .718 Liquidation or limitation of dam -ages ; deposits. (1) Damages fox breach byeither party may be liquidated in the agreementbut only at an amount which is reasonable inthe light of the anticipated or actual harmcaused by the breach, the difficulties of'proof ofloss, and the inconvenience or nonfeasibility ofotherwise obtainingg an adequate remedy,. Aterm fixing unreasonably large liquidated dam-ages is void as a penalty .,

(2) Where the seller justifiably withholdsdelivery of goods because of the buyer's breach,the buyer is entitled to restitution of anyamount by which the sum of his paymentsexceeds :

(a) The amount to which the seller is entitledby virtue of terms liquidating the seller's dam-ages in accordance with sub (1) ; or

(b) In the absence of such terms, 20 per centof the value of'the total performance for whichthe buyer is obligated under the contract or$500, whichever is smaller.,

(3) The buyer's right to restitution under sub ..(2) is subject to offset to the extent that the sellerestablishes :

(a) A right to recover damages under thischapter other than sub. (1) ; and

(b) The amount or value of any benefitsreceived by the buyer directly or indirectly byreason of'thecontract .

(4) Where a seller has received payment ingoods their reasonable value or the proceeds oftheir resale shall be treated as payments for thepurposee of'sub. (2) ; but if'the seller has notice ofthe buyer's breach before reselling goods re-ceived in part performance, his resale is subjectto the conditions laid down in s . 402 .706 onresale by an aggrieved seller .

Defendant cannot, by demurrer, raise the question of'un-reasonable liquidated damages, since even if this is true,plaintiff is entitled to recover the damages he can prove .Northwestern Motor Car, Inc .c v Pope, 51 W (2d) 292, 187NW (2d) 200Where stipulated damages clausee is valid, mitigation of

damages is not applicable to determine damages . Wassenaarv Panos, l l l W (2d) 518, 331 NW (2d) 357 (1983) . .

402.719 Contractual modification or limita-tion of remedy . (1) Subject to subs . . (2) and (3)and to s .' 402 .718 on liquidation and limitationof damages :

402 .716 Buyer's right to specific perform-ance or replevin . (1) Specific performance maybe .decreed where the goods are unique or inother proper circumstances .

(2) The decree for specificc performance mayinclude such terms and conditions as to pay-ment of the price, damages or other relief as thecourt may deem just

(3) The buyer has a right of replevin for -goods identified to the contract if after reason-able effort he is unable to effect cover for suchgoods or the circumstances reasonably indicatethat such effort will be unavailing or if' thegoods have been shipped under reservation and

4193

(2) Market price is to be determined as of theplace for tender or ; in cases of rejection afterarrival or revocation of acceptance, as of theplace of arrival . ;

402 .714 Buyer' s damages for breach in re-gard to accepted goods . (1) Where the buyerhas accepted goods and given notification (s ..402.607 (3)) he may recover as damages for anynonconformity of'tender the loss resulting in theordinary course of events from the seller'sbreach as determined in any manner which isreasonable

(2) The measure of damages for breach ofwarranty is the difference at the time and placeof acceptance between the value of'the goodsaccepted and the value they would have had ifthey had been as warranted, unless special cir-cumstances show proximate damages of 'a dif-ferent amount,

(3) In a proper case any incidental and conse-quential damages under s. 402 .215 may also berecovered : .

402:795 Buyer 's incidental and consequent-ial damages. (1) Incidental damages resultingfrom the seller's breach include expenses rea-sonably incurred in inspection, receipt, trans-portation and care and custody of'goodsrght-fully rejected, any commercially reasonablecharges, expenses or commissions in connectionwith effecting cover and any other reasonableexpense incident to the delay or other breach, .

( 2) Consequential damages resulting f'r`ommthe seller's breach include:

(a) Any loss resulting from general or partic-ular requirements andd needs of which the sellerat the time of contracting had reason to knowand which could not reasonably be preventedby cover or otherwise ; and

(b) Injury to person or property proximatelyresulting from any breach of warranty .

Litigation expenses are not recoverable under this section .Muitay v. Holiday Rambler, Inc, 83 W (2d) 406, 265 NW(2d) :513 (1978) .

SALES 402.719

satisfaction of'the security interest in them hasbeen made or tendered . ,

402.717 Deduction of damages from theprice. The buyer on notifying the seller of hisintention to do'so may deduct all or any part ofthe damages resulting from any breach of thecontract from any part of the price still dueunder the same contract..


402.722 Who can sue third parties for injuryto goods. Where a third party so deals withgoods which have been identified to a contractfor sale as to cause actionable injury to a partyto that contract :

(1 ) A right of'act on against the third party isin either party to the contract for sale who hastitle to or a security interest or a special prop-erty or an insurable interest in the goods ; and ifthe goods: have been destroyed or converted aright of action is also in the party who eitherbore the risk of loss under the contract for saleor has since the injury assumedd that risk . . asagainst the other ;

(2) If at the time of the injury the partyplaintiff did not bear the risk of loss as against

402.725 Statute of limitations in contracts forsale . (1 ) An action fox, breach of any contractfor sale must be commenced within 6 years afterthe cause of action has accrued . . By the originalagreement the parties, if' they are merchants,may reduce the period of limitation to not lessthan one year. The period of limitation may nototherwise be varied by agreement..

(2 ) A cause of action accrues when the breachoccurs, regardless of'the aggrieved party's lackof knowledge of the breach . A breach ofwarranty occurs when tender of delivery ismade, except that where a warranty explicitly

402.719 SALES

(a) The agreement may provide for remediesin addition to or, in substitution for those pro-vided in this chapter and may limit or alterr themeasure of damagess recoverable under thischapter, as by limiting the buyer's remedies toreturn of the goods and repayment of the priceor to repair and replacement of nonconforminggoods or parts; and

(b) Resort to a remedy as provided is op-tional unless the remedy is expressly agreed tobe exclusive, in which case it is the sole remedy .

(2) Where circumstances cause an exclusiveor limited remedy to fail of its essential purpose,remedy may be had as provided in chs„ 401 to409 ...

(3) Consequential damages may be limited orexcluded unless the limitation or exclusion isunconscionable .. Limitation of consequentialdamages for- injury to the person in the case ofconsumer goods is prima facie unconscionablebut limitation of' damages where the loss iscommercial is not . .

History: 1 979 c 89.Commercial contract clause which limited consequential

damages was unconscionab le . T iink l e v. Schumacher Co . .1 00 W (2d) 13, 301 NW (2d) 255 (Ct, App .. 1980).

402 .720 Effect of " cancellation" or "rescis-sion" on claims for antecedent breach. Unlesssthee contrary intention clearly appears expres-sions of "cancellation" or, "rescission" of thecontract or the like shall not be construed as arenunciation or dischargee of any claim in dam-ages for the antecedent breach .

402 .721 Remedies for fraud . Remedies fbr,material misrepresentation or fraud include allremedies available under this chapter for non-f'raudulentbreach. Neither rescission or a claimfor rescission of the contract for sale nor, tejec-tion or' return of' the goods shall bar or bedeemed inconsistent with a claim for damagesor other remedy .

4194

the other party to the contract for s ale and thereis no arrangement between them for dispos itionof the recovery, his suit or settlement is , subjectto his own interest , as a fiduciar y for the otherparty to the contract

(3) Eitherparty may with the consent of theother sue for the benefitt of' whomm it mayconcern .

402.723 Proof of market price : time andplace . (1) . Ifan action based on anticipatoryrepudiation comes to trial before the time forperformance with respect to some or all of'thegoods, any damages based on market price (ss402,708 or 402,713) shall be determined accord-ing to the price of such goods prevailing at thetime when the aggrieved party learned of therepudiation ..

(2) Ifevidence of a price prevailing at thetimes or places described in this chapter is notreadily available the price prevailing within anyreasonable time before or after the time de-scribed or at any other place which in commer-cial judgment or under usage of trade wouldservee as a reasonable substitute for the onedescribed may be used, making anyy properallowance for the cost of transporting the goodsto or from such other place, .

(3) Evidence of a relevant price prevailingg atthe time or place other than the one described inthis chapter offered by one party is not admissi-ble unless and until he has given the other partysuch notice as the court finds sufficient toprevent unfair surprise .

402.724 Admissibility of market quotations .Whenever the prevailingg price or, value of anygoods regularly bought and sold in any estab-lished commodity market is in issue, reports inofficial publications or trade journals or innewspapers or periodicals of general circulationpublished as the reports of'such market shall beadmissible in evidence . . The circumstances ofthe preparation of such a report may be shownto affect its weight but not its admissibility ..


extends to future performance of ' the goods and (4) This section does not alter the law ondiscovery of the breach must await the time of tolling of the statute of limitations nor does itsuch performance the cause of action accrues apply to causes of action which have accruedwhen the breach is or should have been before chs . . 401 to 409 became effective .ediscovered . . History: 1979 c . 89 .

(3) Where an action commenced within thetime limited by sub,. (1) is so terminated as to Our 6-year statute of limitations controls rather than the

4-year statute of another state in a conflicts case. Air Prod-leave available a remedy by another action for ucts & Chemicals, Inc .c v Fairbanks, 58 w (2d) 193 , 206 NW

,the same breach such other action may be (2d) 414commenced after the expiration of the time County was a "merchant" under 402 104 for purp oses oflimited and within 6 months after the tetmina- limitation under 402 , 725 (I) . County of Milwaukee v

Northrop Data Systems, 602 F (2d) 767 (1979) .)tion of the first action unless the terminationresulted from voluntary discontinuance or, from Wisconsin law was applied despite contrary choice o£law

provision in contract. Office Supply Coo v. Basic/Four Cooppdismissal for failure or neglect to prosecute„ 538 F supp. 776 (1982).

4195" SALES 402.725
