402.513(1)(1) Unless otherwise agreed and subject to
sub. (3), where goods are tendered or delivered or identified to the contract for sale, the buyer has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the seller is required or authorized to send the goods to the buyer, the inspection may be after their arrival.
402.513(2)
(2) Unless otherwise agreed, expenses of inspection must be borne by the buyer but may be recovered from the seller if the goods do not conform and are rejected.
402.513(3)
(3) Unless otherwise agreed and subject to
s. 402.321 (3) on C.I.F. contracts, the buyer is not entitled to inspect the goods before payment of the price when the contract provides:
402.513(3)(a)
(a) For delivery "C.O.D." or on other like terms; or
402.513(3)(b)
(b) For payment against documents of title, except where such payment is due only after the goods are to become available for inspection.
402.513(4)
(4) A place or method of inspection fixed by the parties is presumed to be exclusive but unless otherwise expressly agreed it does not postpone identification or shift the place for delivery or for passing the risk of loss. If compliance becomes impossible, inspection shall be as provided in this section unless the place or method fixed was clearly intended as an indispensable condition failure of which avoids the contract.
402.514
402.514
When documents deliverable on acceptance; when on payment. Unless otherwise agreed documents against which a draft is drawn are to be delivered to the drawee on acceptance of the draft if it is payable more than 3 days after presentment; otherwise, only on payment.
402.515
402.515
Preserving evidence of goods in dispute. In furtherance of the adjustment of any claim or dispute:
402.515(1)
(1) Either party on reasonable notification to the other and for the purpose of ascertaining the facts and preserving evidence has the right to inspect, test and sample the goods including such of them as may be in the possession or control of the other; and
402.515(2)
(2) The parties may agree to a 3rd party inspection or survey to determine the conformity or condition of the goods and may agree that the findings shall be binding upon them in any subsequent litigation or adjustment.
402.515 History
History: 2005 a. 253.
BREACH, REPUDIATION AND EXCUSE
402.601
402.601
Buyer's rights on improper delivery. Subject to
s. 402.612 on breach in installment contracts and unless otherwise agreed under
ss. 402.718 and
402.719 on contractual limitations of remedy, if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may:
402.601(3)
(3) Accept any commercial unit or units and reject the rest.
402.602
402.602
Manner and effect of rightful rejection. 402.602(1)(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.
402.602(2)(a)
(a) After rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and
402.602(2)(b)
(b) If the buyer has before rejection taken physical possession of goods in which the buyer does not have a security interest under
s. 402.711 (3), the buyer is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but
402.602(2)(c)
(c) The buyer has no further obligations with regard to goods rightfully rejected.
402.602(3)
(3) The seller's rights with respect to goods wrongfully rejected are governed by
s. 402.703 on seller's remedies in general.
402.602 History
History: 1991 a. 316.
402.602 Annotation
Section 402.608 (2) provides that a revocation of acceptance must occur within a reasonable time after the buyer discovers a nonconformity, and sub. (2) (b) requires a buyer who rejects goods to hold the goods for a sufficient time for the seller to remove them. A truck purchaser who used the vehicle for 18 months, then transferred it back to the dealer and sought relief 10 months after the transfer did not reject the vehicle in a timely manner or hold it as required, and was not entitled to relief. Smyser v. Western Star Trucks Corp. 2001 WI App 180,
247 Wis. 2d 281,
634 N.W.2d 134,
00-2482.
402.602 Annotation
When a seller refused to accept a return of goods upon notice of breach by the buyer, and the buyer thereafter used the goods for 3 months, the buyer could not recover for breach of warranty. Concrete Equipment Co. v. William A. Smith Contracting Co., Inc.
358 F. Supp. 1137 (1973).
402.603
402.603
Merchant buyer's duties as to rightfully rejected goods. 402.603(1)(1) Subject to any security interest in the buyer (
s. 402.711 (3)), when the seller has no agent or place of business at the market of rejection a merchant buyer is under a duty after rejection of goods in the merchant buyer's possession or control to follow any reasonable instructions received from the seller with respect to the goods and in the absence of such instructions to make reasonable efforts to sell them for the seller's account if they are perishable or threaten to decline in value speedily. Instructions are not reasonable if on demand indemnity for expenses is not forthcoming.
402.603(2)
(2) When the buyer sells goods under
sub. (1), the buyer is entitled to reimbursement from the seller or out of the proceeds for reasonable expenses of caring for and selling them, and if the expenses include no selling commission then to such commission as is usual in the trade or if there is none to a reasonable sum not exceeding 10 per cent of the gross proceeds.
402.603(3)
(3) In complying with this section the buyer is held only to good faith and good faith conduct hereunder is neither acceptance nor conversion nor the basis of an action for damages.
402.603 History
History: 1991 a. 316.
402.604
402.604
Buyer's options as to salvage of rightfully rejected goods. Subject to
s. 402.603 on perishables, if the seller gives no instructions within a reasonable time after notification of rejection the buyer may store the rejected goods for the seller's account or reship them to the seller or resell them for the seller's account with reimbursement as provided in
s. 402.603. Such action is not acceptance or conversion.
402.604 History
History: 1991 a. 316.
402.605
402.605
Waiver of buyer's objections by failure to particularize. 402.605(1)(1) The buyer's failure to state in connection with rejection a particular defect which is ascertainable by reasonable inspection precludes the buyer from relying on the unstated defect to justify rejection or to establish breach:
402.605(1)(a)
(a) Where the seller could have cured it if stated seasonably; or
402.605(1)(b)
(b) Between merchants when the seller has after rejection made a request in writing for a full and final written statement of all defects on which the buyer proposes to rely.
402.605(2)
(2) Payment against documents made without reservation of rights precludes recovery of the payment for defects apparent on the face of the documents.
402.605 History
History: 1991 a. 316.
402.606
402.606
What constitutes acceptance of goods. 402.606(1)(1) Acceptance of goods occurs when the buyer:
402.606(1)(a)
(a) After a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that the buyer will take or retain them in spite of their nonconformity; or
402.606(1)(b)
(b) Fails to make an effective rejection (
s. 402.602 (1)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
402.606(1)(c)
(c) Does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by the seller.
402.606(2)
(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.
402.606 History
History: 1991 a. 316.
402.606 Annotation
When a buyer accepts goods, the seller need not prove that the goods were not defective in an action to recover the purchase price. Central Soya Co. Inc. v. Epstein Fisheries, Inc.
676 F.2d 939 (1982).
402.607
402.607
Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over. 402.607(1)
(1) The buyer must pay at the contract rate for any goods accepted.
402.607(2)
(2) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a nonconformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by this chapter for nonconformity.
402.607(3)(a)
(a) The buyer must within a reasonable time after the buyer discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and
402.607(3)(b)
(b) If the claim is one for infringement or the like (
s. 402.312 (3)) and the buyer is sued as a result of such a breach the buyer must so notify the seller within a reasonable time after the buyer receives notice of the litigation or be barred from any remedy over for liability established by the litigation.
402.607(4)
(4) The burden is on the buyer to establish any breach with respect to the goods accepted.
402.607(5)
(5) Where the buyer is sued for breach of a warranty or other obligation for which the buyer's seller is answerable over:
402.607(5)(a)
(a) The buyer may give the buyer's seller written notice of the litigation. If the notice states that the seller may come in and defend and that if the seller does not do so the seller will be bound in any action against the seller by the seller's buyer by any determination of fact common to the 2 litigations, then unless the seller after seasonable receipt of the notice does come in and defend, the seller is so bound.
402.607(5)(b)
(b) If the claim is one for infringement or the like (
s. 402.312 (3)) the original seller may demand in writing that his or her buyer turn over control of the litigation to the original seller including settlement or else be barred from any remedy over and if the original seller also agrees to bear all expense and to satisfy any adverse judgment, then unless the buyer after seasonable receipt of the demand does turn over control the buyer is so barred.
402.607(6)
(6) Subsections (3),
(4) and
(5) apply to any obligation of the buyer to hold the seller harmless against infringement or the like (
s. 402.312 (3)).
402.607 History
History: 1991 a. 316.
402.607 Annotation
Notice of a breach of warranty was a condition precedent to recovery in an action for wrongful death allegedly caused by a defective seat belt. Schnabl v. Ford Motor Co.
54 Wis. 2d 345,
195 N.W.2d 602,
198 N.W.2d 161 (1972).
402.607 Annotation
Under the facts of the case, a 2-month delay in giving notice was not unreasonable. Paulson v. Olson Implement Co., Inc.
107 Wis. 2d 510,
319 N.W.2d 855 (1982).
402.608
402.608
Revocation of acceptance in whole or in part. 402.608(1)(1) The buyer may revoke the buyer's acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to the buyer if the buyer has accepted it:
402.608(1)(a)
(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
402.608(1)(b)
(b) Without discovery of such nonconformity if the buyer's acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.
402.608(2)
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
402.608(3)
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if the buyer had rejected them.
402.608 History
History: 1991 a. 316.
402.608 Annotation
Sub. (2) provides that a revocation of acceptance must occur within a reasonable time after the buyer discovers a nonconformity, and s. 402.602 (2) (b) requires a buyer who rejects goods to hold the goods for a sufficient time for the seller to remove them. A truck purchaser who used the vehicle for 18 months, then transferred it back to the dealer and sought relief 10 months after the transfer did not reject the vehicle in a timely manner or hold it as required, and was not entitled to relief. Smyser v. Western Star Trucks Corp. 2001 WI App 180,
247 Wis. 2d 281,
634 N.W.2d 134,
00-2482.
402.609
402.609
Right to adequate assurance of performance. 402.609(1)(1) A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until the demanding party receives such assurance may if commercially reasonable suspend any performance for which the demanding party has not already received the agreed return.
402.609(2)
(2) Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards.
402.609(3)
(3) Acceptance of any improper delivery or payment does not prejudice the aggrieved party's right to demand adequate assurance of future performance.
402.609(4)
(4) After receipt of a justified demand failure to provide within a reasonable time not exceeding 30 days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.
402.609 History
History: 1991 a. 316.
402.610
402.610
Anticipatory repudiation. When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may:
402.610(1)
(1) For a commercially reasonable time await performance by the repudiating party; or
402.610(2)
(2) Resort to any remedy for breach (
ss. 402.703 or
402.711), even though the aggrieved party has notified the repudiating party that the aggrieved party would await the latter's performance and has urged retraction; and
402.610(3)
(3) In either case suspend the aggrieved party's performance of the contract or proceed in accordance with
s. 402.704 on the seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods.
402.610 History
History: 1991 a. 316.
402.611
402.611
Retraction of anticipatory repudiation. 402.611(1)(1) Until the repudiating party's next performance is due the repudiating party can retract the repudiation unless the aggrieved party has since the repudiation canceled or materially changed position or otherwise indicated that the aggrieved party considers the repudiation final.
402.611(2)
(2) Retraction may be by any method which clearly indicates to the aggrieved party that the repudiating party intends to perform, but must include any assurance justifiably demanded under
s. 402.609.
402.611(3)
(3) Retraction reinstates the repudiating party's rights under the contract with due excuse and allowance to the aggrieved party for any delay occasioned by the repudiation.
402.611 History
History: 1991 a. 316.
402.612
402.612
"Installment contract"; breach. 402.612(1)
(1) An "installment contract" is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause "each delivery is a separate contract" or its equivalent.
402.612(2)
(2) The buyer may reject any installment which is nonconforming if the nonconformity substantially impairs the value of that installment and cannot be cured or if the nonconformity is a defect in the required documents; but if the nonconformity does not fall within
sub. (3) and the seller gives adequate assurance of its cure the buyer must accept that installment.
