LAS VEGAS UNIFORM COMMERCIAL CODE ATTORNEY
What is The Uniform Commercial Code?
What if you do not receive what you paid for?
What if the merchandise you receive is not what you purchased?
What is a warranty of merchantability?
What is a warranty of fitness for a particular purpose?
THE UNIFORM COMMERCIAL CODE
The Uniform Commercial Code is a comprehensive modernization of the law governing commercial transactions, designed to simplify and clarify the law, and to secure uniformity in the states that have adopted it. Nevada has adopted it. It is the product of many years of exhaustive study. One of the Code’s primary goals is to promote certainty and predictability in commercial transactions and is construed liberally in accordance with its underlying purposes of making uniform the law among the various states. The Code is designed to promote the observance of good faith and the prevention of fraud. The duty of good faith and fair dealing applies when one party had discretionary authority to determine certain terms of the contract, such as quantity, price, or time. In addition to the duty of good faith and fair dealing there are certain warranties that apply to all sales of goods. These warranties include; a warranty of title, a warranty against encumbrances, a warranty of conformity to description, a warranty of fitness for a particular purpose, a warranty against infringement, and a general warranty of merchantability.
DELAY IN DELIVERY OR FAILURE TO DELIVER
What happens when the goods you order do not get delivered on time or do not get delivered at all?
In the event that you have ordered goods that have not been delivered at all this could be considered a breach of contract and you should immediately seek the services of an experienced attorney to explain your legal rights and assist you. Generally, a failure of delivery relates to the failure to deliver goods within a specific time.
Under the Uniform Commercial Code, a stipulation in the contract of sale as to the time of delivery is controlling and the time fixed for delivery may be declared to be of the essence of the contract. However, if the contract contains no provision governing time of delivery, delivery must be made within a reasonable time and what constitutes a reasonable time for performance depends on the facts of each case. Sometimes evidence of trade usage and prior dealings between the parties may be considered in determining the reasonable time for delivery and the terms used in the contract are subject to interpretation, for Example:
In a contract that requires “prompt” delivery of goods from Los Angeles to Las Vegas a delay of a month would not be considered reasonable depending on the type of goods and availability. However, the same contract for the sale of goods from China to Nevada containing a provision for “prompt” shipment might be satisfied within two months.
There may be other circumstances that result in delay or failure to deliver the goods that are excusable. Impossibility of performance is often a defense to failure to deliver in the event of total or partial casualty to identified goods before the risk of loss has passed. Typically, contracts contain clauses absolving a party from liability for nonperformance in the event of certain contingencies, such as fires, floods, strikes and the like. Thus, a fire that destroys the plant in which a commodity is to be manufactured excuses the supplier of such commodity from liability for its non-delivery.
Avoidance of a sales contract is also permitted where the goods do not arrive under a “no arrival, no sale” contract. Performance may also be excused where there has been a failure of presupposed conditions, or under conditions that under general law of contracts would excuse performance by reason of impossibility.
If the time of delivery of the goods is of importance to your business, you should always seek the assistance of an experienced attorney in the review and drafting of the contract. There are many facets that come into play in the interpretation of contract provisions and the help of a seasoned attorney can save you a significant amount of frustration and money in your business dealings.
Non-Conforming goods are materials or merchandise that is not consistent with the understanding of the person who ordered them and, depending on the specific terms of the contract, could constitute a breach of contract. You should seek the advice of an experienced attorney to assist you in evaluating your case. If the merchandise received is rejected as non-conforming the buyer must notify the seller within a reasonable period of time. Under the Uniform Commercial Code, it is possible to cure a discrepancy relating to non-conforming goods within a reasonable time if the seller notifies the buyer. This would typically be applicable where the time for performance has not yet expired. In that instance, the seller may notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.
In some instances the seller is allowed to cure a nonconforming tender or delivery within a reasonable time after the delivery date has passed. However, the right of the seller to effect a cure does not last for an indefinite period of time and the buyer is not required to allow the seller to tinker indefinitely with the defective article in the hope that it ultimately may be made to comply. The seller must be able to show that he can cure the improper tender within a reasonable time and does not have a right to repair or cure defects where he is unable to say how long it would take.
Further, although the Code permits the seller to cure his delivery of non-conforming goods the seller’s rights to cure are not unlimited and the cure must be a proper one. The right to cure defects is limited to cases that involve goods with only minor defects, and the seller has no right to cure defects which substantially impair the value of the goods to the buyer. In many instances, even though the seller is allowed to cure the defective tender through repair rather than replacement, there may be cases in which replacement will be the only cure. If the question of repair verses replacement becomes an issue in your case, you should consult with an attorney.
The fact that a buyer accepts a second tender after properly rejecting a first tender does not waive the buyer’s claims for damages resulting from the nonconformity of the first tender. The mere replacement of the defective goods is not a cure if the buyer has sustained incidental damages. Therefore, an experienced attorney should be consulted to assist you in evaluating your circumstances.
WARRANTY OF MERCHANTABILITY OR FITNESS FOR NORMAL USE
Under most circumstances, merchant sellers make an implied warranty of merchantability. An implied warranty is one that is not expressly made by the seller but which is imposed by law. Meaning that the warranty arises automatically from the fact that a sale has been made. There are many implied warranties. One of the most important implied warranties is that the goods are fit for the ordinary purposes for which they are sold. Consequently, when the seller of ice-making and beverage-vending machines is a merchant of such machines, an implied warranty of fitness for use arises. Also included are implied warranties as to the general or average quality of the goods, and their packaging and labeling.
The implied warranty of merchantability relates to the condition of the goods at the time the seller is to perform under the contract. Once the risk of loss has passed to the buyer, there is no warranty as to the continuing merchantability of the goods unless such subsequent deterioration or condition is proof that the goods were in fact not merchantable when the seller made delivery.
Warranty of merchantability relates on to the fitness of the product that is made or sold. It does not impose upon the manufacturer or seller the duty to employ any particular design or to sell one product rather than another because another might be safer.
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
When the seller has reason to know at the time of contracting that the buyer intends to use the goods for a particular or unusual purpose, the seller may make an implied warranty that the goods will be fit for that purpose. Such an implied warranty arises when the buyer relies on the seller’s skill or judgment to select or furnish suitable goods, and when the seller has reason to know of the buyer’s reliance. For example:
Where a government representative inquired of the seller whether the seller has a capacitor suitable for use on a particular aircraft system, there arose an implied warranty, unless otherwise excluded, that the capacitor furnished by the seller was fit for that purpose. This warranty of fitness for a particular purpose does not arise when the goods are to be used for the purpose for which they are customarily sold or when the buyer orders goods on particular specifications and does not disclose the purpose.
The fact that as seller does not intend to make a warranty of fitness for a particular purpose is immaterial. Certain evidence is admissible to show that theseller had knowledge of the buyer’s intended use. An experienced attorney is needed to ascertain whether or not such evidence exists.
Understanding the Uniform Commercial Code and its application to your case requires a thorough review of the relevant documents between the parties and evaluation of the appropriate article of the Code. Therefore, it is extremely important that you hire an experienced Las Vegas Attorney to assist you. The Wright Law Group, P.C. has more than 20 years commercial litigation experience and is well equipped to assist you in handling your case. Please call us at 702-405-0001 to schedule a consultation.