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Sales Revision of Uniform Commercial Code Article 2

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Sales Revision of Uniform Commercial Code Article 2 DRAFT FOR DISCUSSION ONLY REVISION OF UNIFORM COMMERCIAL CODE ARTICLE 2 - SALES NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS DECEMBER 1, 1998 REVISION OF UNIFORM COMMERCIAL CODE ARTICLE 2 - SALES WITH COMMENTS COPYRIGHT© 1998 by THE AMERICAN LAW INSTITUTE and the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed on by the National Conference of Commissioners on Uniform State Laws, the American Law Institute, or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners, the Institute and its Members, and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. DRAFTING COMMITTEE TO REVISE UNIFORM COMMERCIAL CODE ARTICLE 2 - SALES LAWRENCE J. BUGGE, 313 Walnut Grove Drive, Madison, WI 53717-1228, Chair JOHN FOX ARNOLD, 714 Locust Street, St. Louis, MO 63101 BORIS AUERBACH, 332 Ardon Lane, Wyoming, OH 45215 GERALD L. BEPKO, Indiana University, 355 N. Lansing Street, Indianapolis, IN 46202 AMELIA H. BOSS, Temple University, School of Law, 1719 N. Broad Street, Philadelphia, PA 19122, The American Law Institute Representative BRUCE A. COGGESHALL, One Monument Square, Portland, ME 04101 CHRISTOPHER D. DINGELL, P.O. Box 30036, Room 910, Farnum Building, Lansing, MI 48909 HENRY DEEB GABRIEL, JR., Loyola University, School of Law, 526 Pine Street, New Orleans, LA 70118 BION M. GREGORY, Office of Legislative Counsel, State Capitol, Suite 3021, Sacramento, CA 95814-4996 WILLIAM H. HENNING, University of Missouri-Columbia, School of Law, 313 Hulston Hall, Columbia, MO 65211 PETER F. LANGROCK, P.O. Drawer 351, Middlebury, VT 05753 CURTIS R. REITZ, University of Pennsylvania, School of Law, 3400 Chestnut Street, Philadelphia, PA 19104 BYRON D. SHER, State Capitol, Suite 2054, Sacramento, CA 95814 JOHN A. SPANOGLE, George Washington University, National Law Center, 2000 H Street, N.W., Washington, DC 20052, The American Law Institute Representative RICHARD E. SPEIDEL, Northwestern University, School of Law, 357 E. Chicago Avenue, Chicago, IL 60611, Reporter LINDA J. RUSCH, Hamline University School of Law, 1536 Hewitt Avenue, St. Paul, MN 55104, Associate Reporter EX OFFICIO GENE N. LEBRUN, P.O. Box 8250, 9th Floor, 909 St. Joseph Street, Rapid City, SD 57709, President BARRY H. EVENCHICK, One Gateway Center, 8th Floor, Newark, NJ, 07102, Division Chair AMERICAN BAR ASSOCIATION ADVISORS DAVID JOEL FRISCH, 1101 W. University Avenue, Champaign, IL 61821, Advisor KARL B. GRUBE, Pinellas County Court, Room 305, 150 5th Street, N., St. Petersburg, FL 33701, Judicial Administration Division, National Conference of Special Court Judges Section Advisor THOMAS J. MCCARTHY, DuPont Legal, Barley Mill Plaza 17-2286, Wilmington, DE 19805, Business Law Section Advisor EXECUTIVE DIRECTOR FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019, Executive Director WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus Copies of this Act may be obtained from: NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 211 E. Ontario Street, Suite 1300 Chicago, Illinois 60611 312/915-0195 TABLE OF CONTENTS PART 1 GENERAL PROVISIONS .............................................1 SECTION 2-101. SHORT TITLE ..........................................1 SECTION 2-102. DEFINITIONS...........................................1 SECTION 2-103. SCOPE................................................10 SECTION 2-104. TRANSACTION SUBJECT TO OTHER LAW . 12 SECTION 2-105. UNCONSCIONABLE CONTRACT OR TERM . 13 SECTION 2-106. INTEREST AND PART INTEREST IN GOODS . 14 SECTION 2-107. GOODS TO BE SEVERED FROM REAL PROPERTY; RECORDING ...................................................15 SECTION 2-108. EFFECT OF AGREEMENT . 16 PART 2 FORM, FORMATION, TERMS, AND READJUSTMENT OF CONTRACT . 17 [A. In General] ..............................17 SECTION 2-201. FORMAL REQUIREMENTS . 17 SECTION 2-202. PAROL OR EXTRINSIC EVIDENCE . 20 SECTION 2-203. SEALS INOPERATIVE ..................................23 SECTION 2-204. FORMATION IN GENERAL . 23 SECTION 2-205. FIRM OFFERS. .........................................26 SECTION 2-206. OFFER AND ACCEPTANCE . 27 SECTION 2-206A. UNENFORCEABLE TERMS IN CONSUMER CONTRACTS . 30 -iii- SECTION 2-207. EFFECT OF ADDITIONAL OR DIFFERENT TERMS IN RECORDS. .....................................................31 SECTION 2-208. COURSE OF PERFORMANCE OR PRACTICAL CONSTRUCTION................................................36 SECTION 2-209. MODIFICATION, RESCISSION, AND WAIVER . 37 B. Electronic Contracting..........................39 SECTION 2-210. LEGAL RECOGNITION OF ELECTRONIC RECORDS AND AUTHENTICATIONS ............................................40 SECTION 2-211. COMMERCIAL REASONABLENESS OF ATTRIBUTION PROCEDURE ...................................................40 SECTION 2-212. EFFECT OF REQUIRING COMMERCIALLY UNREASONABLE ATTRIBUTION PROCEDURE . 40 SECTION 2-213. DETERMINING TO WHICH PERSON AN ELECTRONIC AUTHENTICATION, MESSAGE, RECORD, OR PERFORMANCE ATTRIBUTED; RELIANCE LOSSES. ...............................40 SECTION 2B-114. ATTRIBUTION PROCEDURE FOR DETECTION OF CHANGES AND ERRORS; EFFECT OF USE . 41 SECTION 2B-115. ELECTRONIC ERROR: CONSUMER DEFENSES . 42 SECTION 2-216. AUTHENTICATION PROOF; ELECTRONIC AGENT OPERATIONS...................................................43 SECTION 2-217. ELECTRONIC MESSAGES: TIMING OF CONTRACT; EFFECTIVENESS OF MESSAGE; ACKNOWLEDGING MESSAGES . 43 -iv- SECTION 2-218. OFFER AND ACCEPTANCE; ELECTRONIC AGENTS . 44 PART 3 GENERAL OBLIGATION AND CONSTRUCTION OF CONTRACT . 46 SECTION 2-301. HOW CONTRACT PRICE PAYABLE . 46 SECTION 2-302. PERFORMANCE AT SINGLE TIME . 47 SECTION 2-303. OPEN-PRICE TERM ....................................48 SECTION 2-304. OUTPUT, REQUIREMENTS, AND EXCLUSIVE DEALING . 50 SECTION 2-305. ABSENCE OF SPECIFICATION OF PLACE FOR DELIVERY . 52 SECTION 2-306. TIME FOR PERFORMANCE NOT SPECIFIED . 53 SECTION 2-307. OPTIONS AND COOPERATION RESPECTING PERFORMANCE ................................................54 SECTION 2-308. FAILURE TO PAY BY AGREED LETTER OF CREDIT. 56 SECTION 2-309. SHIPMENT TERMS; SOURCE OF MEANING . 57 SECTION 2-310. TERMINATION; SURVIVAL OF OBLIGATIONS AND TERMS ........................................................58 SECTION 2-311. TERMINATION; NOTIFICATION . 59 SECTION 2-312. SALE BY AUCTION ....................................61 PART 4. WARRANTIES ....................................................64 SECTION 2-401. DEFINITIONS..........................................64 SECTION 2-402. WARRANTY OF TITLE AND AGAINST INFRINGEMENT; BUYER'S OBLIGATION AGAINST INFRINGEMENT . 66 -v- SECTION 2-403. EXPRESS WARRANTY TO IMMEDIATE BUYER . 69 SECTION 2-404. IMPLIED WARRANTY OF MERCHANTABILITY; USAGE OF TRADE ........................................................72 SECTION 2-405. IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE ......................................................76 SECTION 2-406. DISCLAIMER OR MODIFICATION OF WARRANTY . 77 SECTION 2-407. CUMULATION AND CONFLICT OF WARRANTIES . 80 SECTION 2-408. EXPRESS WARRANTY OBLIGATION TO REMOTE BUYER AND TRANSFEREE..............................................81 SECTION 2-409. EXTENSION OF EXPRESS OR IMPLIED WARRANTY . 86 PART 5 TRANSFERS, IDENTIFICATION, CREDITORS, AND GOOD-FAITH PURCHASERS .......................................................91 SECTION 2-501. PASSING OF TITLE; RESERVATION FOR SECURITY . 91 SECTION 2-502. INSURABLE INTEREST IN GOODS; MANNER OF IDENTIFICATION OF GOODS .....................................93 SECTION 2-503. ASSIGNMENT OF RIGHTS; DELEGATION OF DUTIES . 96 SECTION 2-504. POWER TO TRANSFER; GOOD-FAITH PURCHASE OF GOODS; “ENTRUSTING” ........................................100 SECTION 2-505. RIGHTS OF SELLER'S CREDITORS AGAINST GOODS SOLD .........................................................102 -vi- SECTION 2-506. SALE ON APPROVAL AND SALE OR RETURN; SPECIAL INCIDENTS....................................................104 PART 6 PERFORMANCE ..................................................107 SECTION 2-601. GENERAL OBLIGATIONS . 107 SECTION 2-602. SELLER'S TENDER OF DELIVERY . 107 SECTION 2-603. SHIPMENT BY SELLER ................................111 SECTION 2-604. SELLER'S SHIPMENT UNDER RESERVATION . 113 SECTION 2-605. RIGHTS OF FINANCING AGENCY . 115 SECTION 2-606. EFFECT OF SELLER'S TENDER; DELIVERY ON CONDITION ...................................................116 SECTION 2-607. TENDER OF PAYMENT BY BUYER; PAYMENT BY CHECK .......................................................117 SECTION 2-608. PAYMENT BY BUYER BEFORE INSPECTION . 118 SECTION 2-609. BUYER'S RIGHT TO INSPECT GOODS . 119 SECTION 2-610. WHEN DOCUMENTS OF TITLE DELIVERABLE ON ACCEPTANCE OR PAYMENT ...................................121 SECTION 2-611. OPEN TIME FOR PAYMENT OR RUNNING OF CREDIT; AUTHORITY TO SHIP UNDER RESERVATION . 122 SECTION 2-612. RISK OF LOSS ........................................123 -vii- PART 7 BREACH, REPUDIATION, AND EXCUSE . 127 SECTION 2-701. BREACH OF CONTRACT GENERALLY; SUBSTANTIAL IMPAIRMENT .................................................127 SECTION 2-702. WAIVER OF BREACH; PARTICULARIZATION OF NONCONFORMITY.............................................129 SECTION 2-703. BUYER'S RIGHTS
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