Absence of specific time provisions; notice of termination. 402.309(1)(1)
The time for shipment or delivery or any other action under a contract if not provided in this chapter or agreed upon shall be a reasonable time.
Where the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.
Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable.
Open time for payment or running of credit; authority to ship under reservation.
Unless otherwise agreed:
Payment is due at the time and place at which the buyer is to receive the goods even though the place of shipment is the place of delivery; and
If the seller is authorized to send the goods the seller may ship them under reservation, and may tender the documents of title, but the buyer may inspect the goods after their arrival before payment is due unless such inspection is inconsistent with the terms of the contract (s. 402.513
If delivery is authorized and made by way of documents of title otherwise than by sub. (2)
then payment is due at the time and place at which the buyer is to receive the documents regardless of where the goods are to be received; and
Where the seller is required or authorized to ship the goods on credit the credit period runs from the time of shipment but postdating the invoice or delaying its dispatch will correspondingly delay the starting of the credit period.
History: 1991 a. 316
Options and cooperation respecting performance. 402.311(1)(1)
An agreement for sale which is otherwise sufficiently definite (s. 402.204 (3)
) to be a contract is not made invalid by the fact that it leaves particulars of performance to be specified by one of the parties. Any such specification must be made in good faith and within limits set by commercial reasonableness.
Unless otherwise agreed specifications relating to assortment of the goods are at the buyer's option and except as otherwise provided in s. 402.319 (1) (c)
specifications or arrangements relating to shipment are at the seller's option.
Where such specification would materially affect the other party's performance but is not seasonably made or where one party's cooperation is necessary to the agreed performance of the other but is not seasonably forthcoming, the other party in addition to all other remedies:
Is excused for any resulting delay in his or her own performance; and
May also either proceed to perform in any reasonable manner or after the time for a material part of his or her own performance treat the failure to specify or to cooperate as a breach by failure to deliver or accept the goods.
History: 1991 a. 316
Warranty of title and against infringements; buyer's obligation against infringement. 402.312(1)
Subject to sub. (2)
there is in a contract for sale a warranty by the seller that:
The title conveyed shall be good, and its transfer rightful; and
The goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.
A warranty under sub. (1)
will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or herself or that the person selling is purporting to sell only such right or title as the person selling or a third person may have.
Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications.
History: 1971 c. 40
; 1991 a. 316
Express warranties by affirmation, promise, description, sample. 402.313(1)(1)
Express warranties by the seller are created as follows:
Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that the seller have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.
History: 1991 a. 316
Express warranties discussed. Ewers v. Eisenzopf, 88 W (2d) 482, 276 NW (2d) 802 (1979).
Strict liability of the bailor, lessor and licensor. 57 MLR 111.
Implied warranty: merchantability; usage of trade. 402.314(1)(1)
Unless excluded or modified (s. 402.316
), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
Goods to be merchantable must be at least such as:
Pass without objection in the trade under the contract description; and
In the case of fungible goods, are of fair average quality within the description; and
Are fit for the ordinary purposes for which such goods are used; and
Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
Are adequately contained, packaged, and labeled as the agreement may require; and
Conform to the promises or affirmations of fact made on the container or label if any.
Unless excluded or modified (s. 402.316
) other implied warranties may arise from course of dealing or usage of trade.
Band mothers, although selling the food, were not merchants as contemplated by (1). Samson v. Riesing, 62 W (2d) 698, 215 NW (2d) 662.
Where circumstances rendered breach of good faith and of fiduciary obligation chargeable to buyer, buyer was barred from asserting causes based on breach of warranty of merchantability, or on seller's claimed fault, to recover from packing company that portion of claim disallowed, with buyer's consent, by railroad. Greisler Bros., Inc. v. Packerland Pack Co., Inc. 392 F Supp. 206.
Status of products liability in Wisconsin. Coyne, 43 WBB, No. 4.
Implied warranty: fitness for particular purpose.
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under s. 402.316
an implied warranty that the goods shall be fit for such purpose.
Where expansion joints corroded soon after installation in steam system, but defendant manufacturer was unaware of corrosive agent in steam, this section does not allow recovery. Wis. Elec. Power Co. v. Zallea Bros., Inc. 606 F (2d) 697 (1979).
Exclusion or modification of warranties. 402.316(1)(1)
Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to s. 402.202
on parol or extrinsic evidence, negation or limitation is inoperative to the extent that such construction is unreasonable.
Subject to sub. (3)
, to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."
Notwithstanding sub. (2)
, all of the following apply:
Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty.
When the buyer before entering into the contract has examined the goods or the sample or model as fully as the buyer desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to the buyer.
Except as provided in s. 95.195
, there is no implied warranty that cattle, hogs, sheep or horses are free from sickness or disease at the time a sale is consummated if all state and federal regulations pertaining to animal health are complied with by the seller, unless the seller knows at the time a sale is consummated that the cattle, hogs, sheep or horses were sick or diseased.
An implied warranty can be excluded or modified by course of dealing or course of performance or usage of trade.
Remedies for breach of warranty can be limited in accordance with ss. 402.718
on liquidation or limitation of damages and on contractual modification of remedy.
History: 1981 c. 128
; 1989 a. 277
Disclaimer of implied warranties under (2) made after sale would be ineffective. Taterka v. Ford Motor Co. 86 W (2d) 140, 271 NW (2d) 653 (1978).
Cumulation and conflict of warranties express or implied.
Warranties whether express or implied shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant. In ascertaining that intention the following rules apply:
Exact or technical specifications displace an inconsistent sample or model or general language of description.
A sample from an existing bulk displaces inconsistent general language of description.
Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.
Third party beneficiaries of warranties, express or implied.
A seller's warranty whether express or implied extends to any natural person who is in the family or household of the seller's buyer or who is a guest in that buyer's home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.
History: 1991 a. 316
Privity rule applies in implied warranty cases and the availability of punitive damages depends on the facts proved rather than the formal theory of recovery alleged. Drake v. Wham-O Manufacturing Co. 373 F Supp. 608.
F.O.B. and F.A.S. terms. 402.319(1)
Unless otherwise agreed the term F.O.B. (which means "free on board") at a named place, even though used only in connection with the stated price, is a delivery term under which:
When the term is F.O.B. the place of shipment, the seller must at that place ship the goods in the manner provided in s. 402.504
and bear the expense and risk of putting them into the possession of the carrier; or
When the term is F.O.B. the place of destination, the seller must at the seller's expense and risk transport the goods to that place and there tender delivery of them in the manner provided in s. 402.503
When under either par. (a)
the term is also F.O.B. vessel, car or other vehicle, the seller must in addition at the seller's expense and risk load the goods on board. If the term is F.O.B. vessel the buyer must name the vessel and in an appropriate case the seller must comply with s. 402.323
on the form of bill of lading.
Unless otherwise agreed the term F.A.S. vessel (which means "free alongside") at a named port, even though used only in connection with the stated price, is a delivery term under which the seller must:
At the seller's expense and risk deliver the goods alongside the vessel in the manner usual in that port or on a dock designated and provided by the buyer; and
Obtain and tender a receipt for the goods in exchange for which the carrier is under a duty to issue a bill of lading.
Unless otherwise agreed in any case falling within sub. (1) (a)
the buyer must seasonably give any needed instructions for making delivery, including when the term is F.A.S. or F.O.B. the loading berth of the vessel and in an appropriate case its name and sailing date. The seller may treat the failure of needed instructions as a failure of cooperation under s. 402.311
. The seller may also at the seller's option move the goods in any reasonable manner preparatory to delivery or shipment.
Under the term F.O.B. vessel or F.A.S. unless otherwise agreed the buyer must make payment against tender of the required documents and the seller may not tender nor the buyer demand delivery of the goods in substitution for the documents.
History: 1991 a. 316
See note to 402.207, citing Melrose Intern., Etc. v. Patrick Cudahy Inc. 482 F Supp. 1369 (1980).
C.I.F. and C.& F. terms. 402.320(1)
The term C.I.F. means that the price includes in a lump sum the cost of the goods and the insurance and freight to the named destination. The term C.& F. or C.F. means that the price so includes cost and freight to the named destination.
Unless otherwise agreed and even though used only in connection with the stated price and destination, the term C.I.F. destination or its equivalent requires the seller at the seller's expense and risk to:
Put the goods into the possession of a carrier at the port for shipment and obtain a negotiable bill or bills of lading covering the entire transportation to the named destination; and
Load the goods and obtain a receipt from the carrier (which may be contained in the bill of lading) showing that the freight has been paid or provided for; and
Obtain a policy or certificate of insurance, including any war risk insurance, of a kind and on terms then current at the port of shipment in the usual amount, in the currency of the contract, shown to cover the same goods covered by the bill of lading and providing for payment of loss to the order of the buyer or for the account of whom it may concern; but the seller may add to the price the amount of the premium for any such war risk insurance; and
Prepare an invoice of the goods and procure any other documents required to effect shipment or to comply with the contract; and
Forward and tender with commercial promptness all the documents in due form and with any indorsement necessary to perfect the buyer's rights.
Unless otherwise agreed the term C.& F. or its equivalent has the same effect and imposes upon the seller the same obligations and risks as a C.I.F. term except the obligation as to insurance.
Under the term C.I.F. or C.& F. unless otherwise agreed the buyer must make payment against tender of the required documents and the seller may not tender nor the buyer demand delivery of the goods in substitution for the documents.
History: 1991 a. 316