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411.109 411.109 Option to accelerate at will.
411.109(1) (1) A term providing that one party or his or her successor in interest may accelerate payment or performance or require collateral or additional collateral "at will" or "when he or she considers himself or herself insecure" or in words of similar import means that he or she has power to do so only if he or she in good faith believes that the prospect of payment or performance is impaired.
411.109(2) (2) With respect to a consumer lease, the burden of establishing good faith under sub. (1) is on the party who exercised the power. With respect to a lease other than a consumer lease, the burden of establishing lack of good faith under sub. (1) is on the party against whom the power has been exercised.
411.109 History History: 1991 a. 148.
subch. II of ch. 411 SUBCHAPTER II
FORMATION AND CONSTRUCTION
OF LEASE CONTRACT
411.201 411.201 Statute of frauds.
411.201(1)(1) A lease contract is not enforceable by way of action or defense unless any of the following occurs:
411.201(1)(a) (a) The total payments to be made under the lease contract, excluding payments for options to renew or buy, are less than $1,000.
411.201(1)(b) (b) There is a writing, signed by the party against whom enforcement is sought or by that party's authorized agent, sufficient to indicate that a lease contract has been made between the parties and to describe the goods leased and the lease term.
411.201(2) (2) Any description of leased goods or of the lease term is sufficient and satisfies sub. (1) (b), whether or not it is specific, if it reasonably identifies what is described.
411.201(3) (3) A writing is not insufficient because it omits or incorrectly states a term agreed upon, but the lease contract is not enforceable under sub. (1) (b) beyond the lease term and the quantity of goods shown in the writing.
411.201(4) (4) A lease contract that does not satisfy the requirements of sub. (1), but that is valid in other respects, is enforceable if any of the following occurs:
411.201(4)(a) (a) The goods are to be specially manufactured or obtained for the lessee and are not suitable for lease or sale to others in the ordinary course of the lessor's business, and the lessor, before notice of repudiation is received and under circumstances that reasonably indicate that the goods are for the lessee, has made either a substantial beginning of their manufacture or commitments for their procurement.
411.201(4)(b) (b) The party against whom enforcement is sought admits in that party's pleading, testimony or otherwise in court that a lease contract was made, except that the lease contract is not enforceable under this paragraph beyond the quantity of goods admitted.
411.201(4)(c) (c) Goods have been received and accepted by the lessee, except that the lease contract is not enforceable under this paragraph beyond the quantity of goods received and accepted.
411.201(5) (5) The lease term under a lease contract referred to in sub. (4) is one of the following:
411.201(5)(a) (a) If there is a writing signed by the party against whom enforcement is sought or by that party's authorized agent specifying the lease term, the term so specified.
411.201(5)(b) (b) If par. (a) does not apply and the party against whom enforcement is sought admits in that party's pleading, testimony, or otherwise in court a lease term, the term so admitted.
411.201(5)(c) (c) If par. (a) or (b) does not apply, a reasonable lease term.
411.201 History History: 1991 a. 148.
411.202 411.202 Final written expression: parol or extrinsic evidence. Terms with respect to which the confirmatory memoranda of the parties agree or that are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included in the writing may not be contradicted by evidence of an earlier agreement or of a contemporaneous oral agreement but may be explained or supplemented by all of the following:
411.202(1) (1) Course of dealing or usage of trade or by course of performance.
411.202(2) (2) Evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.
411.202 History History: 1991 a. 148.
411.203 411.203 Seals inoperative. The affixing of a seal to a writing evidencing a lease contract or an offer to enter into a lease contract does not make the writing a sealed instrument and the law with respect to sealed instruments does not apply to the lease contract or offer.
411.203 History History: 1991 a. 148.
411.204 411.204 Formation in general.
411.204(1) (1) A lease contract may be made in any manner sufficient to show agreement, including conduct by both parties that recognizes the existence of a lease contract.
411.204(2) (2) An agreement sufficient to constitute a lease contract may be found although the moment of its making is undetermined.
411.204(3) (3) Although one or more terms are left open, a lease contract does not fail for indefiniteness if the parties intended to make a lease contract and there is a reasonably certain basis for giving an appropriate remedy.
411.204 History History: 1991 a. 148.
411.205 411.205 Firm offers. An offer by a merchant to lease goods to or from another person in a signed writing that by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or, if no time is stated, for a reasonable time, but in no event may the period of irrevocability exceed 3 months. A term of assurance on a form supplied by the offeree shall be signed separately by the offeror.
411.205 History History: 1991 a. 148.
411.206 411.206 Offer and acceptance in formation of lease contract.
411.206(1)(1) Unless otherwise unambiguously indicated by the language or circumstances, an offer to make a lease contract must be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.
411.206(2) (2) If 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.
411.206 History History: 1991 a. 148.
411.207 411.207 Course of performance or practical construction.
411.207(1)(1) If a lease contract involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is relevant to determine the meaning of the lease agreement.
411.207(2) (2) The express terms of a lease agreement and any course of performance, as well as any course of dealing and usage of trade, shall be construed whenever reasonable as consistent with each other; but if that construction is unreasonable, express terms control course of performance, course of performance controls both course of dealing and usage of trade, and course of dealing controls usage of trade.
411.207(3) (3) Subject to the provisions of s. 411.208 on modification and waiver, course of performance is relevant to show a waiver or modification of any term that is inconsistent with the course of performance.
411.207 History History: 1991 a. 148.
411.208 411.208 Modification, rescission and waiver.
411.208(1) (1) An agreement modifying a lease contract needs no consideration to be binding.
411.208(2) (2) A signed lease agreement that excludes modification or rescission except by a signed writing may not be otherwise modified or rescinded, but, except as between merchants, such a requirement on a form supplied by a merchant must be signed separately by the other party.
411.208(3) (3) Although an attempt at modification or rescission does not satisfy the requirements of sub. (2), it may operate as a waiver.
411.208(4) (4) A party who has made a waiver affecting an executory portion of a lease contract may retract the waiver by reasonable notification received by the other party that strict performance shall be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.
411.208 History History: 1991 a. 148.
411.209 411.209 Lessee under finance lease as beneficiary of supply contract.
411.209(1)(1) The benefit of a supplier's promises to the lessor under the supply contract and of all warranties, whether express or implied, including those of a 3rd party provided in connection with or as part of the supply contract, extends to the lessee to the extent of the lessee's leasehold interest under a finance lease related to the supply contract, but is subject to the terms of the warranty and of the supply contract and all defenses or claims arising therefrom.
411.209(2) (2) The extension of the benefit of a supplier's promises and of warranties to the lessee does not modify the rights and obligations of the parties to the supply contract, whether arising therefrom or otherwise, or impose any duty or liability under the supply contract on the lessee.
411.209(3) (3) A modification or rescission of the supply contract by the supplier and the lessor is effective between the supplier and the lessee unless, before the modification or rescission, the supplier receives notice that the lessee has entered into a finance lease related to the supply contract. If the modification or rescission is effective between the supplier and the lessee, the lessor is considered to have assumed, in addition to the obligations of the lessor to the lessee under the lease contract, promises of the supplier to the lessor and warranties that were so modified or rescinded as they existed and were available to the lessee before modification or rescission.
411.209(4) (4) In addition to the extension of the benefit of the supplier's promises and of warranties to the lessee under sub. (1), the lessee retains all rights that the lessee may have against the supplier which arise from an agreement between the lessee and the supplier or under other law.
411.209 History History: 1991 a. 148.
411.210 411.210 Express warranties.
411.210(1)(1) Express warranties by the lessor are created as follows:
411.210(1)(a) (a) Any affirmation of fact or promise made by the lessor to the lessee that relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the affirmation or promise.
411.210(1)(b) (b) Any description of the goods that is made part of the basis of the bargain creates an express warranty that the goods will conform to the description.
411.210(1)(c) (c) Any sample or model that is made part of the basis of the bargain creates an express warranty that the whole of the goods will conform to the sample or model.
411.210(2) (2) It is not necessary to the creation of an express warranty that the lessor use formal words, such as "warrant" or "guarantee", or that the lessor 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 lessor's opinion or commendation of the goods does not create a warranty.
411.210 History History: 1991 a. 148.
411.211 411.211 Warranties against interference and against infringement; lessee's obligation against infringement.
411.211(1)(1) There is in a lease contract a warranty that for the lease term no person holds a claim to or interest in the goods that arose from an act or omission of the lessor, other than a claim by way of infringement or the like, that will interfere with the lessee's enjoyment of its leasehold interest.
411.211(2) (2) Except in a finance lease, there is in a lease contract by a lessor who is a merchant regularly dealing in goods of the kind a warranty that the goods are delivered free of the rightful claim of any person by way of infringement or the like.
411.211(3) (3) A lessee who furnishes specifications to a lessor or a supplier shall hold the lessor and the supplier harmless against any claim by way of infringement or the like that arises out of compliance with the specifications.
411.211 History History: 1991 a. 148.
411.212 411.212 Implied warranty of merchantability.
411.212(1)(1) Except in a finance lease, a warranty that the goods will be merchantable is implied in a lease contract if the lessor is a merchant with respect to goods of that kind.
411.212(2) (2) To be merchantable, goods shall meet all of the following minimum standards:
411.212(2)(a) (a) Pass without objection in the trade under the description in the lease agreement.
411.212(2)(b) (b) If fungible goods, be of fair average quality within the description.
411.212(2)(c) (c) Be fit for the ordinary purposes for which goods of that type are used.
411.212(2)(d) (d) Run, within the variation permitted by the lease agreement, of even kind, quality and quantity within each unit and among all units involved.
411.212(2)(e) (e) Be adequately contained, packaged and labeled as the lease agreement requires.
411.212(2)(f) (f) Conform to any promises or affirmations of fact made on the container or label.
411.212(3) (3) Other implied warranties may arise from course of dealing or usage of trade.
411.212 History History: 1991 a. 148.
411.213 411.213 Implied warranty of fitness for particular purpose. Except in a finance lease, if the lessor when the lease contract is made has reason to know of any particular purpose for which the goods are required and that the lessee is relying on the lessor's skill or judgment to select or furnish suitable goods, there is in the lease contract an implied warranty that the goods will be fit for that purpose.
411.213 History History: 1991 a. 148.
411.214 411.214 Exclusion or modification of warranties.
411.214(1)(1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit a warranty shall be construed wherever reasonable as consistent with each other; but, subject to s. 411.202, negation or limitation is inoperative to the extent that the construction is unreasonable.
411.214(2) (2) Subject to sub. (3), to exclude or modify the implied warranty of merchantability or a part of it the language shall mention "merchantability", be by a writing and be conspicuous. Subject to sub. (3), to exclude or modify an implied warranty of fitness the exclusion shall be by a writing and be conspicuous. Language to exclude all implied warranties of fitness is sufficient if it is in writing, is conspicuous and states, for example, "There is no warranty that the goods will be fit for a particular purpose."
411.214(3) (3) Notwithstanding sub. (2), but subject to sub. (4), all of the following apply:
411.214(3)(a) (a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions such as "as is", or "with all faults", or by other language that in common understanding calls the lessee's attention to the exclusion of warranties and makes plain that there is no implied warranty, if in writing and conspicuous.
411.214(3)(b) (b) If the lessee before entering into the lease contract examines the goods or the sample or model as fully as desired or refuses to examine the goods, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed.
411.214(3)(c) (c) An implied warranty may also be excluded or modified by course of dealing, course of performance, or usage of trade.
411.214(4) (4) To exclude or modify a warranty against interference or against infringement or any part of that warranty, the language shall be specific, be by a writing, and be conspicuous, unless the circumstances, including course of performance, course of dealing, or usage of trade, give the lessee reason to know that the goods are being leased subject to a claim or interest of any person.
411.214 History History: 1991 a. 148.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 380 and all Supreme Court Orders entered before June 30, 2014. Published and certified under s. 35.18. Changes effective after July 1, 2014 are designated by NOTES. (Published 7-1-14)