Also known as: nonconformity of tender · non-conforming tender · nonconforming tender · nonconforming performance · tender defect
Written by attorneys · grounded in primary & secondary sources — see below
A deviation by tendered goods or their delivery from the requirements of the sales contract. The buyer may reject the whole tender, accept the whole, or accept any commercial units and reject the rest. When the buyer accepts and gives timely notice, the buyer may recover damages measured by the loss resulting in the ordinary course of events from the breach.
Nexus Technologies contracted to supply Northstar Logistics with specialized shipping containers meeting exact dimensions. Nexus delivered containers that were slightly oversized. Northstar rejected the tender. Nexus promptly notified Northstar of its intent to cure and delivered conforming containers within a reasonable time.
New Horizon Media purchased printing equipment from Nexus Financial. The equipment arrived with a minor calibration issue that Nexus Financial had not disclosed. New Horizon Media accepted the equipment after inspection and notified Nexus Financial of the problem. New Horizon Media recovered the reasonable loss from the nonconformity.
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A buyer may reject the whole tender if the goods or delivery fail in any respect to conform to the contract. The rule applies to single-delivery contracts and does not require the nonconformity to be material or affect a majority of the units.
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A buyer who accepts goods and gives timely notice may recover the loss resulting in the ordinary course of events from the seller's breach. The measure may be the difference in value or any other reasonable method of calculation.
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A seller may cure by substituting a conforming tender within the contract time after seasonable notice. When the seller had reasonable grounds to believe the original tender would be acceptable, the seller may have additional reasonable time to cure after seasonable notice.
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The buyer may choose to accept conforming commercial units and reject the remainder, but the buyer is not required to do so when the tender as a whole fails to conform. The buyer may instead reject the entire shipment.
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…to cure a defective performance. Under this provision, even where the contract period has expired and the buyer has rejected a nonconforming tender or has revoked an acceptance, the seller may “substitute a conforming tender” if he had “reasonable grounds to believe” that the nonconforming tender would be accepted and “if he seasonably…