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
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).
402.607 Annotation
Ordinarily, what constitutes a reasonable time is a question of fact for a jury. However, a delay may be for such a long period that as a matter of law the court must hold that the notice was not given within a reasonable time. Absent evidence of circumstances excusing or justifying the delay, 10 months is not a reasonable time to delay giving notice as a matter of law. Wilson v. Tuxen,
2008 WI App 94,
312 Wis. 2d 705,
754 N.W.2d 220,
07-1964.
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.
402.608 Annotation
When the trial court found that the plaintiff's employees were told by the defendant that a part of a system purchased from the defendant would not work and there was no evidence presented at trial as to any further discussion of additional work, the plaintiff could not reasonably assume that the nonconformity would be cured, making revocation under subs. (1) (a) and (2) unavailable. Viking Packaging Technologies, Inc. v. Vassallo Foods, Inc.,
2011 WI App 133,
337 Wis. 2d 125,
804 N.W.2d 507,
10-2067.
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.
402.612(3)
(3) Whenever nonconformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole; but the aggrieved party reinstates the contract if the aggrieved party accepts a nonconforming installment without seasonably notifying of cancellation or if the aggrieved party brings an action with respect only to past installments or demands performance as to future installments.
402.612 History
History: 1991 a. 316.
402.613
402.613
Casualty to identified goods. Where the contract requires for its performance goods identified when the contract is made, and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer, or in a proper case under a “no arrival, no sale" term (s.
402.324) then:
402.613(1)
(1) If the loss is total the contract is avoided; and
402.613(2)
(2) If the loss is partial or the goods have so deteriorated as no longer to conform to the contract the buyer may nevertheless demand inspection and at the buyer's option either treat the contract as avoided or accept the goods with due allowance from the contract price for the deterioration or the deficiency in quantity but without further right against the seller.
402.613 History
History: 1991 a. 316.
402.614
402.614
Substituted performance. 402.614(1)(1)
Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted.
402.614(2)
(2) If the agreed means or manner of payment fails because of domestic or foreign governmental regulation, the seller may withhold or stop delivery unless the buyer provides a means or manner of payment which is commercially a substantial equivalent. If delivery has already been taken, payment by the means or in the manner provided by the regulation discharges the buyer's obligation unless the regulation is discriminatory, oppressive or predatory.
402.615
402.615
Excuse by failure of presupposed conditions. Except so far as a seller may have assumed a greater obligation and subject to s.
402.614 on substituted performance:
402.615(1)
(1) Delay in delivery or nondelivery in whole or in part by a seller who complies with subs.
(2) and
(3) is not a breach of the seller's duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.
402.615(2)
(2) Where the causes mentioned in sub.
(1) affect only a part of the seller's capacity to perform, the seller must allocate production and deliveries among the seller's customers but may at the seller's option include regular customers not then under contract as well as the seller's own requirements for further manufacture. The seller may so allocate in any manner which is fair and reasonable.
402.615(3)
(3) The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under sub.
(2), of the estimated quota thus made available for the buyer.
402.615 History
History: 1991 a. 316.
402.616
402.616
Procedure on notice claiming excuse. 402.616(1)(1)
Where the buyer receives notification of a material or indefinite delay or an allocation justified under s.
402.615 the buyer may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under s.
402.612 relating to breach of installment contracts, then also as to the whole:
402.616(1)(a)
(a) Terminate and thereby discharge any unexecuted portion of the contract; or
402.616(1)(b)
(b) Modify the contract by agreeing to take the buyer's available quota in substitution.
402.616(2)
(2) If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding 30 days the contract lapses with respect to any deliveries affected.
402.616 History
History: 1991 a. 316.
REMEDIES
402.701
402.701
Remedies for breach of collateral contracts not impaired. Remedies for breach of any obligation or promise collateral or ancillary to a contract for sale are not impaired by the provisions of this chapter.
402.702
402.702
Seller's remedies on discovery of buyer's insolvency. 402.702(1)(1)
Where the seller discovers the buyer to be insolvent the seller may refuse delivery except for cash including payment for all goods theretofore delivered under the contract, and stop delivery under s.
402.705.
402.702(2)
(2) Where the seller discovers that the buyer has received goods on credit while insolvent the seller may reclaim the goods upon demand made within 10 days after the receipt, but if misrepresentation of solvency has been made to the particular seller in writing within 3 months before delivery the 10-day limitation does not apply. Except as provided in this subsection the seller may not base a right to reclaim goods on the buyer's fraudulent or innocent misrepresentation of solvency or of intent to pay.
402.702(3)
(3) The seller's right to reclaim under sub.
(2) is subject to the rights of a buyer in ordinary course or other good faith purchaser under s.
402.403. Successful reclamation of goods excludes all other remedies with respect to them.
402.702 History
History: 1991 a. 316.
402.702 Annotation
A holder of a security interest in after-acquired collateral qualifies as a good faith purchaser under sub. (3). House of Stainless v. Marshall & Ilsley Bank,
75 Wis. 2d 264,
249 N.W.2d 561 (1977).
402.702 Annotation
When a bank, as the transferee of the seller, did not rely on a balance sheet that misrepresented the buyer's insolvency and had no knowledge of the facts prior to the sale or delivery, it could not exercise the seller's right of reclamation. In re Hardin,
458 F.2d 938 (1972).
402.703
402.703
Seller's remedies in general. Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract (s.
402.612), then also with respect to the whole undelivered balance, the aggrieved seller may:
402.703(3)
(3) Proceed under s.
402.704 respecting goods still unidentified to the contract;
402.704
402.704
Seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods. 402.704(1)(a)
(a) Identify to the contract conforming goods not already identified if at the time the aggrieved seller learned of the breach those goods are in the aggrieved seller's possession or control;
402.704(1)(b)
(b) Treat as the subject of resale goods which have demonstrably been intended for the particular contract even though those goods are unfinished.
402.704(2)
(2) Where the goods are unfinished an aggrieved seller may in the exercise of reasonable commercial judgment for the purposes of avoiding loss and of effective realization either complete the manufacture and wholly identify the goods to the contract or cease manufacture and resell for scrap or salvage value or proceed in any other reasonable manner.
402.704 History
History: 1991 a. 316.
402.705
402.705
Seller's stoppage of delivery in transit or otherwise. 402.705(1)(1)
The seller may stop delivery of goods in the possession of a carrier or other bailee when the seller discovers the buyer to be insolvent (s.
402.702) and may stop delivery of carload, truckload, planeload or larger shipments of express or freight when the buyer repudiates or fails to make a payment due before delivery or if for any other reason the seller has a right to withhold or reclaim the goods.
402.705(2)
(2) As against such buyer the seller may stop delivery until:
402.705(2)(b)
(b) Acknowledgment to the buyer by any bailee of the goods except a carrier that the bailee holds the goods for the buyer; or
402.705(2)(c)
(c) Such acknowledgment to the buyer by a carrier by reshipment or as a warehouse; or
402.705(2)(d)
(d) Negotiation to the buyer of any negotiable document of title covering the goods.
402.705(3)(a)(a) To stop delivery the seller must so notify as to enable the bailee by reasonable diligence to prevent delivery of the goods.
