Brief Fact Summary. An individual purchased a hearing aid from the representative of a hearing aid manufacturer. Although the individual wanted a specific hearing aid, a "modified and improved" model was sold to him instead. This did not help the individual's hearing. The company offered to send the original model of hearing aid that the individual attempted to buy or to replace the model the individual actually received.
Synopsis of Rule of Law. Section 2-508 of the Uniform Commercial Code ("UCC"), "permits a seller to cure a nonconforming delivery under certain circumstances."
Issue. "[W]hether or not the plaintiff, having delivered a model which admittedly is not in exact conformity with the contract, can nevertheless recover in view of his subsequent tender of the model that did meet the terms of the contract."
Held. The court first discusses how §2-508 of the UCC "permits a seller to cure a nonconforming delivery under certain circumstances." Section 2-508(1) allows a "seller to cure a nonconforming delivery before the expiration of the contract time by notifying the buyer of his intention to so cure and by making a delivery within the contract period." Section 3-508(2) goes even further. It "extends beyond the contract time the right of the seller to cure a defective performance." Specifically, "even where the contract period has expired and the buyer has rejected a nonconforming tender or has revoked an acceptance, the seller may 'substitute a conforming tender' if he had 'reasonable grounds to believe' that the nonconforming tender would be accepted and 'if he seasonably notifies the buyer' of his intention 'to substitute a conforming tender.' " In effect extending "the contract period beyond the date set forth in the contract itself." The only exception to this is if the buyer requires strict performance. The court concludes that the seller "had reasonable grounds to believe that the newer model would be accepted by the defendant." Further, the Plaintiff "acted within a reasonable time to notify the defendant of his tender of a conforming model."
Discussion. This case offers a very informative discussion of §2-508 of the UCC and how it drastically changed commercial law.