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KANSAS COMMENT, 1996

1. This section creates an important exception to the "perfect tender" rule of 84-2-601. It permits a seller, under proper circumstances, to cure a nonconforming delivery after rejection by the buyer and thereby avoid breaching the contract. If the seller cures, the buyer loses any right to reject the goods, although it may sue for damages suffered as a result of the original nonconforming tender.

2. Subsection (1) permits cure when the time for performance under the contract has not yet expired. The seller may cure by seasonably notifying the buyer of its intention to cure and then making a conforming tender within the remaining contract time.

3. Subsection (2) permits cure after the time for performance has expired, but only when the buyer rejects a nonconforming tender that the seller had "reasonable grounds to believe would be acceptable. "If the seller seasonably notifies the buyer, it has a reasonable time beyond the contract deadline to make a conforming tender. A seller has reasonable grounds to believe a tender would be acceptable (1) when it knows of the nonconformity but has some reason, such as a trade usage or prior course of dealing, to believe the tender is nevertheless acceptable; or (2) when a reasonably prudent seller would not know of the nonconformity. These considerations should be applied with regard to the policy of the subsection, which is to avoid injustice to the seller resulting from a " surprise rejection" by the buyer. Official Comment 2 to this section.

4. To cure, a seller may, as appropriate, either repair or replace the nonconforming goods. If, however, the defect is such as to "shake the faith" of a reasonable person in the goods, or if after a reasonable time the seller is unable to effect cure, the seller loses its right to cure. See, e.g., Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super. 441, 240 A.2d 195 (1968).

5. By its terms, this section creates a right to cure only when the buyer rejects the goods. It does not apply when the buyer revokes acceptance of the goods. See Fleet Maintenance, Inc. v. Burke Energy Midwest Corp., 11 K.A.2d 523, 728 P.2d 408 (1986); Linscott v. Smith, 3 K.A.2d 1, 587 P.2d 1271 (1978).

Law Review and Bar Journal References:

The buyer's notice of rejection is important because of the seller's right to "cure," Keith Hey, 7 W.L.J. 35, 37, 38 (1967).

"Beefing Up Product Warranties: A New Dimension In Consumer Protection," Barkley Clark, Michael J. Davis, 23 K.L.R. 567, 574, 614 (1975).

"The Buyer's Right to Return Unsatisfactory Goods—The Uniform Commercial Code Remedies of Rejection and Revocation of Acceptance," George I. Wallach, 20 W.L.J. 20 (1980).

CASE ANNOTATIONS

1. Contention that conduct of plaintiff deprived defendant of right to cure hereunder not sustained. La Villa Fair v. Lewis Carpet Mills, Inc., 219 K. 395, 404, 548 P.2d 825.

2. Defendant not allowed to cure or substitute for nonconforming goods after acceptance; action on implied warranty proper. Linscott v. Smith, 3 K.A.2d 1, 3, 587 P.2d 1271.

3. Where buyer has accepted goods tendered by seller, seller has no right to cure. Fleet Maintenance, Inc. v. Burke Energy Midwest Corp. 11 K.A.2d 523, 525, 728 P.2d 408 (1986).

4. Cited; party believing breach of contract has duty to give seasonable notice; right to cure, when. Inter-Americas Ins. Corp. v. Imaging Solutions Co., 39 K.A.2d 875, 887, 185 P.3d 963 (2008).