Chapter 26, Question 1
Clark, the manager of Penbridge Farms, placed and advertisement in the July issue of Emu Finder for the sale of proven breeder pairs. Donna Smith called Clark in response to the ad. Clark told Smith a breeder pair was available and sold the pair to Smith for $16,500.00. After some months had passed, Smith inspected the pair and discovered that Clark had sold her to two males. Smith immediately notified Clark and revoked her acceptance of Emus. Clark said too much time had passed for the revocation.
The birds were described in the ad as a proven breeder pair. After several months had passed Smith discovered a substantial impairment of the birds which did not conform to the contract. Both birds were male. Upon discovery, Smith notified Clark in a timely manner. Can Smith revoke her acceptance?
An express warranty is any description given by the defendant of the goods and is the basis of the bargain (Twomey & Jennings, p. 558). Section 2-608 of the UCC states the buyer may revoke his or her acceptance of goods, in whole or in part, where the goods non-conformity substantially impairs its value if the buyer accepted it “without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.” Revocation of acceptance must occur within a timely manner of discovering the defect (UCC § 2-608). In order to revoke acceptance the buyer must give the seller notice of revocation (Twomey & Jennings, p. 587). The same rights and duties of someone who rejected the goods also apply to the buyer who revokes acceptance (UCC § 2-608).
Clark expressly warranted that the emus were a “proven breeder pair”. Like many types of birds, it is not easy to determine gender by external observation. Clark assured Smith that the birds were a male and female pair that successfully had chicks. Non-conformity of the description of the emus is a breach of...