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Hey everyone,

I had a quick question about UCC Provision 2-206(b) which states:

1. “An order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer"

If seller sends nonconforming shipment that isn't expressed as an accommodation and thus acts as acceptance, can the Buyer accept the goods and still sue for breach? What happens damages-wise if the non-conforming goods are more expensive than what the Buyer originally ordered?

My second question concerns Option contracts under the Restatement:

An optionee that waive the option provided he gets new consideration. However can an offeror do this as well (give consideration so he can waive the option he gave)?

Thank you all!
-Bigsby

Bigsby wrote:Hey everyone,

I had a quick question about UCC Provision 2-206(b) which states:

1. “An order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer"

If seller sends nonconforming shipment that isn't expressed as an accommodation and thus acts as acceptance, can the Buyer accept the goods and still sue for breach? What happens damages-wise if the non-conforming goods are more expensive than what the Buyer originally ordered?

My second question concerns Option contracts under the Restatement:

An optionee that waive the option provided he gets new consideration. However can an offeror do this as well (give consideration so he can waive the option he gave)?

Thank you all!
-Bigsby

I'm pretty sure if the seller sends nonconforming goods, it acts as both acceptance and breach.
I'm not sure about your second question, what section of the restatement is that?

Bigsby wrote:Hey everyone,

I had a quick question about UCC Provision 2-206(b) which states:

1. “An order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer"

If seller sends nonconforming shipment that isn't expressed as an accommodation and thus acts as acceptance, can the Buyer accept the goods and still sue for breach? What happens damages-wise if the non-conforming goods are more expensive than what the Buyer originally ordered?

Per Bartus v. Ricciardi (about a newer model/more expensive good), under U.C.C. § 2-508, seller has option to cure and may substitute a conforming tender if there were reasonable grounds to believe that there would be acceptance, even if the contractual period had expired.

Bigsby wrote: My second question concerns Option contracts under the Restatement:

An optionee that waive the option provided he gets new consideration. However can an offeror do this as well (give consideration so he can waive the option he gave)?

Thank you all!
-Bigsby

Of course, as long as the optionee assents to the waiving the option

^scooped