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84-2-613. 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 (section 84-2-324) then

(a) if the loss is total the contract is avoided; and

(b) 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 his 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.

History: L. 1965, ch. 564, § 93; January 1, 1966.

KANSAS COMMENT, 1996

This section excuses performance by the seller when goods whose continued existence is presupposed by the parties are destroyed. For the section to apply, the following requirements must be met: (1) the goods must be identified when the contract is made, not at some later time (see 84-2-501) —i.e, the contract must be for the purchase of specific, particular goods; (2) the goods must be damaged or destroyed without fault of either party; and (3) the damage or destruction must occur before risk of loss passes to the buyer (see 84-2-509). The section applies whether the goods were already destroyed at the time of contracting or were subsequently destroyed, as long as the other prerequisites are met. When the loss is partial, paragraph (b) gives the buyer the option of avoiding the contract or accepting the goods with a price adjustment.

CASE ANNOTATIONS

1. Applied; goods held accepted by buyer; seller not allowed to substitute for nonconforming goods; remedies of buyer. Linscott v. Smith, 3 Kan. App. 2d 1, 6, 7, 587 P.2d 1271.

2. Seller of grain for future delivery not excused from delivery when grain is not identified as being grown on specific tract of land. Clark v. Wallace County Cooperative Equity Exchange, 26 Kan. App. 2d 463, 466, 986 P.2d 391 (1999).


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