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Bartus v. Riccardi

Citation. 55 Misc.2d3, 284 N.Y.S.2d 222 (N.Y. City Ct. 1967)
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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."  


            The Plaintiff, Bartus (the "Plaintiff"), sold hearing aids for a manufacturer named Acousticon.  On January 15, 1996, the Defendant, Riccardi (the "Defendant"), signed a contract with the Plaintiff to buy Model A-660 Acousticon hearing aids.  A hearing aid clinic recommended to the Defendant that this would be the most effective model for him.  On February 2, 1996, the Plaintiff informed the Defendant that the Model A-660 Acousticon hearing aid had been "modified and improved" and is now called the Model A-665.  The Defendant returned to the hearing clinic, which told him that the model he was using was not the one they recommended.  On February 8, 1996, the Defendant returned to the Plaintiff's office and told the Defendant the hearing aid was giving him a headache and that it was not the model he ordered.  The Plaintiff offered to give the Defendant a Model A-660 hearing aid.  Neither party mentioned canceling the contract.  The Plaintiff informed Acousticon of the Defendant's complaint.  On February 14, 1996, in a letter to the Defendant, Acousticon offered to replace the hearing aid the Defendant currently had with a new Model A-665 or to give him a model Model A-660.  The Defendant refused both types of hearing aids.  Now the Plaintiff sues for return of the balance due on the contract.  


"[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."


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."


This case offers a very informative discussion of §2-508 of the UCC and how it drastically changed commercial law.

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