D went to P's Dodge showroom, and P showed him a brochure for a pickup truck with a second row of seats behind the front seat. The vehicle was not in stock, but P assured D he could have it within 30 days, and that he would be pleased when he saw the truck. D thereupon signed a printed order form and gave P a $500 deposit. The form provided that it was not binding until accepted by the dealer, and the acceptance line was not signed. Two weeks later, P told D the truck had arrived. When D went to accept delivery, he discovered the truck did not have the second seat and demanded the return of his deposit, which P refused. In the course of their discussion, D noticed that P had never signed the order form. P responded that this was a mere oversight and proceeded to sign the order form. D denied the existence of a contract and said he was going elsewhere to buy his truck, which he did. P tendered the correct vehicle to D within the original 30 days promised. Is D obligated to pay for it?
2-206:
(1) Unless otherwise unambiguously indicated by the language or circumstances
•(a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances;
•(b) 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.
(2) Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance.
My roadblocks are as follows:
1. Is the 30 day delivery a promise included in the contract? P's ability to cure is dependent on this, right?
2. Is the demand for his deposit an offer retraction? If so, then it was pre "formal" acceptance and dissolves the contract, unless:
3. Acceptance was actually at time of delivery? Does the physical delivery under 2-206 negate the acceptance stipulation on the form?
Final is tomorrow and this just messed me up. Thanks for any insight!
Mind Bent on a Short Contracts Hypo Forum
-
BVest
- Posts: 7887
- Joined: Tue Mar 20, 2012 1:51 pm
Re: Mind Bent on a Short Contracts Hypo
Mind you, it's been a while, but this sounds like the seller both accepted and breached. Under 2-206, a seller both accepts when it delivers non-conforming goods and simultaneously breaches if the time for the contract has ended or he fails to give notice of cure. Despite the language of the form stating that it is not binding until "accepted by the dealer"; it does not specify that acceptance must be in the form of signing the document. The dealer has delivered the non-conforming goods without notifying the buyer that it is offered as accommodation. Under 2-601, the buyer has the right to reject delivery.
Whether on the second delivery the buyer is liable will hinge on 2-508. Because the 30 days has not elapsed, under 2-508, the dealer may "seasonably notify" the buyer that they still intend to honor the K and deliver conforming goods prior to the 30 day contract period, and thus still perform. Here, however, there are no facts indicating that the dealer has given such notice, much less that the notice has been given seasonably. Absent seasonable notification, the dealer has no right to cure.
The dealer's notice that the conforming vehicle is in and available for pick-up could be considered notice, but it would also have to be seasonable; if the non-conforming vehicle delivery occurred on day 15 and the conforming vehicle delivery was on day 30, it would be hard to consider that notice to be seasonable. (See cmt. 1 "The closer, however, it is to the contract date, the greater is the necessity for extreme promptness on the seller's part in notifying of his intention to cure, if such notification is to be “seasonable” under this subsection.") On the other hand, if the non-conforming vehicle were delivered on day 15 and the conforming vehicle were delivered (with notice of delivery) on day 18, the courts would be more likely to find that notice 3 days after the non-conforming deliver with ample time remaining in the contract period is sufficiently "seasonable."
One might argue that the dealer signing the paper at the time that he did indicates such notification of intent, but that action is ambiguous at best. After all, he does not say why he's signing the K; he may have felt that the delivered vehicle was conforming and that by signing it he could still force the buyer to pay the purchase price for that vehicle.
(ETA a note on SOF: If the dealer is seeking to enforce the K, there's no SOF (assuming essential elements in the writing) issue because the writing is signed by the party to be charged. If the buyer is making a counterclaim of some kind, there is probably also not a problem even if the dealer never signed the form, assuming the form is on dealer letterhead, which would satisfy a signing.)
Good luck.
ETA2: This could probably be analyzed along the lines of the dealership has not accepted the offer until they sign, and they only sign after the buyer has indicated that he has revoked the offer. I wouldn't go that way, but it could be done.
Whether on the second delivery the buyer is liable will hinge on 2-508. Because the 30 days has not elapsed, under 2-508, the dealer may "seasonably notify" the buyer that they still intend to honor the K and deliver conforming goods prior to the 30 day contract period, and thus still perform. Here, however, there are no facts indicating that the dealer has given such notice, much less that the notice has been given seasonably. Absent seasonable notification, the dealer has no right to cure.
The dealer's notice that the conforming vehicle is in and available for pick-up could be considered notice, but it would also have to be seasonable; if the non-conforming vehicle delivery occurred on day 15 and the conforming vehicle delivery was on day 30, it would be hard to consider that notice to be seasonable. (See cmt. 1 "The closer, however, it is to the contract date, the greater is the necessity for extreme promptness on the seller's part in notifying of his intention to cure, if such notification is to be “seasonable” under this subsection.") On the other hand, if the non-conforming vehicle were delivered on day 15 and the conforming vehicle were delivered (with notice of delivery) on day 18, the courts would be more likely to find that notice 3 days after the non-conforming deliver with ample time remaining in the contract period is sufficiently "seasonable."
One might argue that the dealer signing the paper at the time that he did indicates such notification of intent, but that action is ambiguous at best. After all, he does not say why he's signing the K; he may have felt that the delivered vehicle was conforming and that by signing it he could still force the buyer to pay the purchase price for that vehicle.
(ETA a note on SOF: If the dealer is seeking to enforce the K, there's no SOF (assuming essential elements in the writing) issue because the writing is signed by the party to be charged. If the buyer is making a counterclaim of some kind, there is probably also not a problem even if the dealer never signed the form, assuming the form is on dealer letterhead, which would satisfy a signing.)
Good luck.
ETA2: This could probably be analyzed along the lines of the dealership has not accepted the offer until they sign, and they only sign after the buyer has indicated that he has revoked the offer. I wouldn't go that way, but it could be done.
Last edited by BVest on Sat Jan 27, 2018 4:26 am, edited 1 time in total.
-
BNA
- Posts: 351
- Joined: Wed Jan 07, 2015 4:44 pm
Re: Mind Bent on a Short Contracts Hypo
Thank you for taking the time to do that! Extremely helpful.
