Also known as: difficulties of discovery · discovery difficulty
Written by attorneys · grounded in primary & secondary sources — see below
A factor in the UCC revocation-of-acceptance rule that permits a buyer to revoke acceptance of nonconforming goods when the buyer could not reasonably have discovered the nonconformity before acceptance. The factor operates by showing that the buyer's acceptance was reasonably induced by the latent nature of the defect rather than by any failure to inspect.
Liberty Life purchases an ultrasound machine from Midnight Patient. The machine passes initial testing but produces inconsistent images only after weeks of patient use. Liberty Life revokes acceptance because the defect could not reasonably have been found before acceptance.
Apex Builders buys steel beams from Metro Steel Supply. Surface markings appear cosmetic, but engineering tests after installation reveal internal microfractures. Apex revokes acceptance because the structural defect could not reasonably have been discovered before acceptance.
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Difficulty of discovery allows revocation when the nonconformity is latent and could not reasonably have been found by inspection before acceptance. Courts have recognized this factor when goods require extended use or specialized testing to reveal defects.
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No. If a reasonable inspection would not have revealed the nonconformity, the buyer may still revoke. Only when the buyer skips a reasonable inspection that would have shown the defect is revocation barred.
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Either factor independently supports revocation. A buyer may rely on difficulty of discovery alone or on assurances alone. Both need not be present.
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The buyer must show that the defect was not apparent from normal inspection or initial testing and that it only became evident during actual use or later specialized examination.
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