Notice of breach
 Requirements for breach of warranty claims
o (1) the warranty was made
o (2) the warranty was breached
o (3) that the breach of warranty caused the injury
o (4) the extent of damage; and
o (5) that P can fend off any affirmative defenses including:
 Disclaimers
 Lack of notice; and
 Lack of privity
 Lack of notice
o UCC 2-607(3)(a)
 when a tender has been accepted, the buyer must within a reasonable
time after they discover or should have discovered any breach notify the
seller of breach or be barred from any remedies
 When determining reasonableness, think about reasons why there is a
notice requirement. Are any of those purposes defeated by not giving
notice?
 Hebron case
o P destroyed car, deprived D opportunity to inspect
o Court held 2 years was unreasonable length
 So long that it was a matter of law
o other policy considerations
 chance to cure
 prejudice (more time that passes)
 facilitate settlement
 sellers right to repose
 right to move on and not be concerned
about problems
 generally, 3 months is the outer limits of reasonableness
 in a case where the breach has to do with the delay, the seller is aware of
the delay, therefore the seller has no obligation to give notice
 seller may argue that they had notice of breach but not what P
claim would be
 comment 4 to 2-607 supports buyer’s argument, don’t need to
give specifics, just notice
 comment 4, different standards for consumers or retailers
 non merchant consumer held to lower standard
 *measure notice from time tender was accepted (argument for buyer)
 Who gets notice? (extend to manufacturer?)
 (5)(a) seller may give notice to their seller (manufacturer)
 Some courts held that indirect sellers should be entitled to notice
from buyer
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 Other courts hold only immediate seller gets notice from buyer
3rd parties don’t have to give notice in reasonable time
 Comment 5, Still measured by good faith (shouldn’t unreasonably
delay)
Privity
 Horizontal privity
o The ability of a non-buyer who uses or is affected to sue a seller
 Vertical Privity
o The buyer’s ability to sue not just the immediate seller, but the seller’s seller
(other than the immediate seller)
 2-318 Alt. JDs
Magnuson-Moss Warranty Act (15 U.S.C. 2301-2312)
 Does not require sellers to give a written warranty (2302(b)(2))
 BUT if they do, there are minimum standards
o 2304 minimum standards for written FULL warranties
o Can also give a limited warranty or no warranty at all
 Advantages of MMA
o Recover attorney fees
 2310(b)(2) “if a consumer finally prevails in any action brought under
231(d)(1), they may be allowed by the court to recover as part of the
judgement a sum equal to the aggregate amount of cost and expenses
(including attorney’s fees).
o Bring suit in federal court
 McNiff case
o No dispute as to whether attorney’s fees were recoverable, just a question of
reasonableness (contingency fee agreement of 33.3%)
o Defense wanted cap at 10k (what the contingency fee would have been)
o P’s claimed they would have gotten a lot more if they charged by the hour
o Court said they don’t have to stick to their original agreement as long as the
amount is reasonable
 Agreement with client is a factor, but not dispositive
 McCurdy case
o D claimed attorney’s fees should not be recoverable because there was no
written warranty
o P was suing under implied warranty of merchantability, sued under state
law/UCC
o BUT, 2310(d)(2) says “in ANY action brought under 2310(d)(1)”
 Mention implied warranties
o Court agrees you can recover attorney fees in this case
o (d)(1) doesn’t limit to written warranty (very broad)
o As long as you’re a consumer of a consumer good, you can get attorney’s fees
under the act
o *more about if you can sue under MMA, less about attorney’s fees
 McNamara case
o Opposite holding of McCurdy
o Another suit for implied warranty (FFPP) under state law/UCC
o No written warranty
o No recovery for attorney fees
o Looks at 2308, recognizes a right to disclaim warranties
 Limit’s ability of P to bring a claims w/o written warranty
 By not having written warranty, they disclaim the implied warranties
 Denial of warranties in claim, reaffirm denial by not giving written
warranty (for purposes of MMA, not UCC)
o Does not prevent claimant from suing in state court under UCC
 2310(d)(3) suing in federal court under MMA
o Under McCurdy you can get into fed court if you meet these requirements
o Under McNamara, you can’t because they don’t recognize a cognizable claim
under MMA
 Privity under MMA
o Definition of a consumer is broader under MMA, don’t have the same privity
problem you would have under just UCC (looser privity rule)
o Still have JD problem with if MMA applies
 Creating a written warranty under MMA
o 2301(6)(a) defines written warranty
o More specific than UCC
Reducing or eliminating warranties under UCC
 2-316
 Tension between freedom of k and anti-oppression
o Consider relative bargaining power
o Price paid
o Course of dealing, course of performance, usage of trade
o Express terms
 First, determine if warranty was created/what type of warranty was created?
 Then, 2-316
o 2-316(2) for merchantability
 Must mention merchantability
 In case of writing, must be conspicuous
 1-201(b)(10) conspicuous
o Argument that it is conspicuous if buyer saw the provision
o BUT, more of an objective standard
o For FFPP
 Must be in writing and conspicuous
o (3) “as is” clause
 Implied warranties are excluded when there is an “as is” clause
 No requirement to be conspicuous or to mention merchantability

Really need to use “as is” or something very close
 Don’t want to undermine subpart 2
o 2-316(3)(b)
 “when the buyer has examined the goods as fully as desired or has
refused to examine the goods, there is no warranty with regard to
defects which an examination ought to have revealed”
 Comment 8, it’s not enough for the buyer to just not inspect, the seller
has to ask and the buyer has to refuse
 Treats professional buyers different
o Skill level matters
 Not clear if seller needs to demand or if request to inspect is enough
o You cannot include a prominent disclaimer of express warranties to prevent any
express warranties from applying if sales people make express warranties when
trying to get people to buy stuff
 Can include a disclaimer of express warranties AND a merger clause
(need both)
 Only what is in the agreement (writing) are the things that apply
 Can’t introduce evidence that express warranty was ever made
 Even if only partially integrated, if you have a disclaimer of
express warranties in the agreement, then introducing evidence
of express warranties would be an inconsistent (contradictory)
term
 Comment 2, “lack of authority” clause
 Sales people do not have the right to make express warranties
 BUT be careful not to make them seem like they do have the
power because courts may view it as a form of fraud to rely on
the clause
o Limiting remedies
 2-719
 (1) the agreement may limit or alter the measure of damages
recoverable, as by limiting the buyer’s remedies to return of the
goods and repayment of the price or to repair and replacement of
non-conforming goods or part
 (2) where circumstances cause an exhaustive or limited remedy to
fail of its essential purpose, remedy may be had as provided in
UCC
o “failing essential purpose”
 Ex: fixing the brakes on a completely broken car
 (3) consequential damages may be limited or excluded unless the
limitation or exclusion is unconscionable
o Limitation of consequential damages for personal injury in
the case of consumer goods is prima facie unconscionable,
but limitation where loss is commercial is not
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 Direct or indirect exclusion of CD
Disclaiming warranties under MMA
o 2311(b)(1) the goal of this act was not to preempt state law to create uniformity,
but rather to provide additional protections (expand rights of consumers)
o When you enter into a service K, it restricts your ability to disclaim the implied
warranty of merch.
 2308: “(a) no supplier may disclaim or modify any implied warranty to a
consumer with respect to a consumer product if
 Such supplier makes a written warranty; OR
 At time of sale (or within 90 days), the supplier enters a service K
 (b) except for full warranties, a seller may limit the duration of implied
warranties to the duration of the written warranty, if reasonable,
conscionable, and conspicuous”
Exclusive remedies
o 2304(a) (ONLY to FULLL warranties)
 (1) must at a minimum remedy defect within reasonable time
 (2) may not impose any limitation of the duration of any implied warranty
 (3) may not exclude or limit consequential damages, unless conspicuously
appears on face of the warranty
 (4) after reasonable attempts to repair, must offer refund or replacement
Commercial impracticability
 2-613
o For specific or identified goods
o Where the K requires goods identified when K was made, and the goods suffer
casualty without fault of either party before risk of loss passes to the buyer,
then
 (a) if the loss is total the contract is avoided; and
 (b) if the loss is partial…, the buyer may demand inspection and either
treat the contract as avoided or accept the goods with due allowance.
 “due allowance”
o Get back any price paid from seller to remedy the defect
o 2-509
 ROL section
 2-615
o For non-identified/not specific goods
o For exclusive suppliers
o Except so far as seller may have assumed obligation,
 (a) delay in delivery or non-delivery is not a breach if performance is
impracticable by the occurrence of a contingency the non-occurrence of
which was a basic assumption on which the K was made (or by
compliance with gov. reg.)
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(b) where only part of the capacity is affected, seller must allocate
production and deliveries among customers, but may include regular
customers not then under K and own requirements. May allocate in any
manner fair and reasonable.
 (c) the seller must notify the buyer seasonably that there will be delay or
non-delivery, and when allocation is required of the estimated quota
available.
o Courts will generally require party seeking excuse to demonstrate:
 A contingency occurred which made performance impracticable
 Non-occurrence of contingency was a basic assumption of which the K
was made
 Party has not assumed risk of the contingency; and
 Seller seasonably notified buyer that there will be a delay or non-delivery
o Comment 5
 Where the particular source of supply is exclusive and the agreement fails
through casualty, the present section applies
 To claim excuse, must assure themselves that the exclusive isn’t going to
fail, and where the seller is the exclusive source, they have to take proper
precautions
o Determining exclusivity
 Is there a single-source clause?
 Buyer’s argument: if no single source clause, manufacturer should have
to go out and get goods from another supplier
 Seller’s argument: reasonable to assume if you k with manufacturer, the
presumption is that manufacturer is single source (stronger argument)
o Government regulations are a valid excuse, but the seller needs to notify the
buyer and can’t assume risk (ex: highly regulated market, probably assumed the
risk)
Competing policies
o People should be held to their promises (enforce deals)
o Varying degrees of sympathy that there are times other considerations should
supersede the general principle (fairness)
Risks generally assumed (seller)
o That they can obtain the goods
o The price not prove to be unduly low due to market conditions
(buyer)
o Buyer may not want the goods by the time of delivery
o The price not prove to be unduly high due to market conditions
o Commercial impracticability (sellers
o Unexpected failure of seller’s source
o Dramatic and unexpected price decrease
o (buyers)
o Dramatic and unexpected price increase
Force Majeure Clauses

o Clause in K that frees both parties from obligations when extraordinary events
beyond their control precent one or both parties from preforming
Hell or High water clause
o One party has to perform no matter what
Skipped unconscionability and title
Shelter Rule??
Closing the sale
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Perfect tender rule 2-601
o If goods or tender of delivery fail in any respect to conform to K, buyer may
 (a) reject the whole
 (b) accept the whole
 (c) accept any commercial unit and reject the rest
What constitutes acceptance? 2-606
o Acceptance occurs when buyer
 (a) after a reasonable opportunity to inspect signifies that the goods are
acceptable
 Fails to make rejection after reasonable opportunity to inspect, or
 (c) does any act inconsistent with seller’s ownership, but if such act is
wrongful as against the seller it is an acceptance only if ratified by him
 Ex: changing the goods (drilling holes into something)

o Comment 4
 The buyer can take certain actions to inspect that aren’t inconsistent with
seller’s ownership
 Buyer can’t take a “wrongful” act after there has been a rejection
 Narrow reading only post-rejection acts under (1)(c)
Installment contract 2-612
o (1) Installment Ks require delivery in separate lots to be separately accepted
o (2) Buyer may reject any installment which is non-conforming if substantially
impairs the value of that installment and cannot be cured
o (3) Whenever non-conformity with respect to one or more installments
substantially impairs the value of the whole K, there is a breach of the whole, but
aggrieved party reinstates K if the buyer accepts non-conforming installments
without seasonable notice of cancellation
o Shaken faith doctrine
 Where your faith in the seller’s ability to cure has been shaken by some
event (ex Sinco v. Metro North, broken suspension equipment, makes
cure futile)
Right to cure 2-508
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o (1) where any tender is rejected because non-conforming and time for
performance not expired, seller may seasonably notify buyer of cure and make a
conforming delivery
o (2) where reject non-conforming tender which seller may reasonably believed
would be acceptable, the seller may if seasonable notice have a further
reasonable time to make a conforming tender
o Comment 2: need to have reasonable grounds to believe tender would be
acceptable
 If seller doesn’t discover defect, you would believe tender would be
accepted because you assume the good is fine
 Narrow reading: if you didn’t discover the defect, it’s not reasonable
 Middle ground: where reasonable inspections are made (industry
customs)
 Some standard quality controls
**even though you accept non-conforming goods, you can still sue for basic warranty
(IWM), or for damages
Revocation of acceptance 2-608
o (1) may revoke where non-conformity substantially impairs value, if accepted:
 (a) on reasonable assumption that non-conformity would be cured and
hasn’t been; or
 (b) without discovery of non-conformity or acceptance reasonably
induced by assurances
o (2) revocation of acceptance must occur within a reasonable time after the buyer
discovers the ground for it and before any substantial change in condition of the
goods which is not caused by their own defects
o (3) a buyer who revokes has the same rights and duties as if they rejected the
goods
2-606 comment 4
o Cannot re-accept after rejection unless tender is still open or if they retender the
goods
 Really at seller’s option if they want to allow buyer to un-reject goods