Also known as: UCC § 2-614 · U.C.C. 2-614 · UCC 2-614 · Uniform Commercial Code § 2-614 · substituted performance
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule requiring tender and acceptance of a commercially reasonable substitute when the agreed manner of delivery or payment becomes commercially impracticable without fault of either party.
Frontier Sustainability agreed to deliver scrap plastic by barge to Highland Environmental's dedicated riverside dock. A chemical spill closed the river and condemned the dock. Frontier tendered rail delivery to a nearby industrial yard that was commercially available and used for similar shipments. Highland refused the tender and Frontier sued for breach.
Midnight Champions contracted to deliver turf via a specialized hauler through a retractable gate that later failed permanently. The sole hauler exited the market. Midnight tendered flatbed delivery to the stadium parking lot. Global Sports refused the tender citing extra handling risks to the delicate turf.
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Birch Land agreed to receive payment for corn seed through a designated foreign bank. New regulations forced routing through a central bank offering worse rates and longer delays. Birch notified Star Rural it would withhold shipment unless an equivalent channel was arranged. Star insisted the regulated bank was the only legal option.
Transatlantic Financing agreed to ship goods via a specific sea route. An unforeseen closure made the route unavailable. The carrier offered an alternate commercially reasonable route at no extra cost. The buyer refused the substitute and claimed breach.
The section applies when agreed berthing, loading, or unloading facilities fail or an agreed carrier becomes unavailable without fault of either party. A commercially reasonable substitute must then be tendered and accepted. The substitute is evaluated from the perspective of both parties and industry norms.
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Subsection (2) addresses failure of the agreed payment method due to governmental regulation. The seller may withhold delivery unless the buyer supplies a commercially substantial equivalent. Delivery already taken discharges the buyer unless the regulation is discriminatory or predatory.
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No. The substitute must be commercially reasonable. Courts examine added costs, risks, handling requirements, and whether the change preserves the essential benefits the parties expected from the original method.
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…was made.” To the extent this limits relief to “unforeseen” circumstances, comment 1, see the discussion below, and compare Uniform Commercial Code § 2-614(1). There may be a point beyond which agreement cannot go, Uniform Commercial Code § 2-615, comment 8, presumably the point at which the obligation would be “manifestly unreasonable,” §…