Chapter 072

 

      Chapter 72

 

LAW REVIEW CITATIONS: 53 OLR 468-473 (1974); 58 OLR 545 (1980)

 

      72.1020

 

NOTES OF DECISIONS

 

      A contract entitled the sale of a going business is nonetheless within the Sales Article of the Code where the entire purchase price is allocated by the contract terms among the various items of tangible property which are within the statutory definitions of goods. Melms v. Mitchell, 266 Or 208, 512 P2d 1336 (1973)

 

LAW REVIEW CITATIONS: 28 WLR 223 (1992)

 

      72.2010

 

NOTES OF DECISIONS

 

      The sale of goods was taken out of the statute of frauds by receipt and acceptance of the goods by plaintiff in accordance with ORS 72.6060. Gardner & Beedon Co. v. Cooke, 267 Or 7, 513 P2d 758 (1973)

 

      Writing is sufficient to indicate that contract has been made if it affords basis for believing that offered oral evidence rests on real transaction. Tripp v. Pay ‘n Pak Stores, Inc., 268 Or 1, 518 P2d 1298 (1974)

 

      Exclusive dealings contract was not void for failure to state quantity, for ORS 72.3060 provides “quantity” terms with respect to such contracts as matter of law. Kubik v. J & R Foods, 282 Or 179, 577 P2d 518 (1978)

 

      Where seller signed agreement for sale of shop and office equipment and delivered equipment to purchaser and thereafter sought payment from corporation to whom purchaser’s interest was transferred, seller treated transfer and sale as accomplished facts and transaction was out of statute of frauds. Bank of Wallowa v. Gary Mac, Inc., 49 Or App 403, 619 P2d 1310 (1980)

 

      Promissory estoppel is available to avoid the defense of the Statute of Frauds by virtue of ORS 71.1030. Potter v. Hatter Farms, 56 Or App 254, 641 P2d 628 (1982)

 

      Plaintiff’s letter to defendant that by its own terms described no underlying oral agreement was not sufficient as writing in confirmation of oral agreement to take alleged agreement out of Statute of Frauds. Pacific Inland Navigation v. Riedel International, 101 Or App 575, 792 P2d 443 (1990), Sup Ct review denied

 

      This section merely addresses issue of statute of frauds, not issue of terms of contract. Pacific Western Resin Co. v. Condux Pipe Systems, Inc., 771 F Supp 313 (1991)

 

      Attachment of “sign and return” clause does not rule out document as being order confirmation. GPL Treatment, Ltd. v. Louisiana-Pacific Corp., 133 Or App 633, 894 P2d 470 (1995), aff’d323 Or 116, 914 P2d 682 (1996)

 

LAW REVIEW CITATIONS: 28 WLR 565 (1992)

 

      72.2020

 

NOTES OF DECISIONS

 

      Extrinsic evidence was admissible, under this section, to determine whether defendant signed contract in representative capacity. Jenks-White Seed Co. v. Riddell, 47 Or App 573, 614 P2d 1221 (1980)

 

      Court does not have to find writing ambiguous before allowing admission of evidence of prior dealings. Jenks-White Seed Co. v. Riddell, 47 Or App 573, 614 P2d 1221 (1980)

 

      Where merger clause which indicated contract was intended to be complete and exclusive expression of agreement was not conspicuous and to give it effect would be “unconscionable,” parol evidence rule did not bar evidence of express oral warranties. Seibel v. Layne & Bowler, Inc., 56 Or App 387, 641 P2d 668 (1982), Sup Ct review denied

 

      When party admits to oral agreement related to and not inconsistent with written agreement, written agreement may not represent “complete and exclusive” statement of parties, and consistent additional terms from oral agreement may then be admitted. Deerfield Commodities v. Nerco, Inc., 72 Or App 305, 696 P2d 1096 (1985), Sup Ct review denied

 

      To decide whether terms of contract are integrated in writing, court must consider all relevant circumstances to resolve preliminary issues of historical fact, then determine legal effects of those facts. Wescold, Inc. v. Logan International, Ltd., 120 Or App 512, 852 P2d 960 (1993), Sup Ct review denied

 

      Court determination on how court finding of fact regarding document and party intent affects admissibility of evidence is reviewable as matter of law. Wescold, Inc. v. Logan International, Ltd., 120 Or App 512, 852 P2d 960 (1993), Sup Ct review denied

 

LAW REVIEW CITATIONS: 28 WLR 223 (1992)

 

      72.2040

 

NOTES OF DECISIONS

 

      Although this section broadens range of factors available for court’s consideration in determining whether there has been offer and seasonable acceptance, there must still be meeting of minds on actual terms of mutual undertaking in order to have contract. City of Salem v. Clearwater Construction, 84 Or App 674, 735 P2d 373 (1987)

 

      72.2050

 

NOTES OF DECISIONS

 

      This section eliminates common law requirement of consideration for “firm offers” between merchants when offer provides that it is irrevocable for period of time. Taggart v. Douglas County, 31 Or App 1137, 572 P2d 1050 (1977), Sup Ct review denied

 

      72.2070

 

NOTES OF DECISIONS

 

      Where buyer of tubing objected to seller’s additional terms, though buyer continued to accept and pay for tubing, conduct of buyer did not constitute unequivocal assent to such terms of seller disclaiming liability for consequential damages resulting from defective tubing. Diamond Fruit Growers, Inc. v. Krack Corp., 794 F2d 1440 (1986)

 

      72.2080

 

NOTE: Repealed as of January 1, 2010

 

NOTES OF DECISIONS

 

      Provision that express terms control inconsistent course of dealing cannot be taken at face value; express terms, including anti-waiver clauses, may be waived by course of performance inconsistent with those terms. Oregon Bank v. Nautilus Crane and Equipment Corp., 68 Or App 131, 683 P2d 95 (1984)

 

      Although integrated document need not be ambiguous before it may be supplemented or explained by evidence of course of dealing, course of performance or usage of trade, document must be reasonably susceptible to interpretation suggested by such evidence before such evidence is admissible. Deerfield Commodities v. Nerco, Inc., 72 Or App 305, 696 P2d 1096 (1985), Sup Ct review denied

 

      72.2090

 

NOTES OF DECISIONS

 

      Validity of either common law accord and satisfaction or the modification of a contract under this section does not depend on the validity of the claim involved, except to the extent that the claim must be made in good faith. Ruble Forest Prod., Inc. v. Lancer Mobile Homes of Ore., Inc., 269 Or 315, 524 P2d 1204 (1974)

 

      An agreement modifying a contract must have been made in good faith to be binding. Ruble Forest Prod., Inc. v. Lancer Mobile Homes of Ore., Inc., 269 Or 315, 524 P2d 1204 (1974)

 

      72.3020

 

NOTES OF DECISIONS

 

      Unconscionability requires showing that at time of contract formation, terms of agreement bore no reasonable relationship to business risk involved and were so one sided as to be oppressive. W. L. May Co., Inc. v. Philco-Ford Corp., 273 Or 701, 543 P2d 283 (1975)

 

      Even assuming court could address issue of conscionability when not pleaded or otherwise claimed, this section requires parties at least be given opportunity to address issue and to present evidence. Toy Co. Salem, Inc. v. Wood, 109 Or App 265, 819 P2d 312 (1991)

 

      72.3060

 

NOTES OF DECISIONS

 

      At time project contemplated in “requirements contract”between contractor and materialman was terminated, contractor had no good faith need for materialman’s concrete, and thus was not obligated to buy any further concrete. Wilsonville Concrete Products v. Todd Building Company, 281 Or 345, 574 P2d 1112 (1978)

 

      This section establishes “quantity” of exclusive dealings contracts as matter of law, and thus exclusive dealings contract which failed to specify quantity was not void under Statute of Frauds pursuant to ORS 72.2010. Kubik v. J & R Foods, 282 Or 179, 577 P2d 518 (1978)

 

      72.3090

 

NOTES OF DECISIONS

 

      When no minimum duration is stated in contract, general rule is that it is terminable at will by either party subject to obligation of this section to give reasonable notice and general obligation to act in good faith stated in ORS 71.2030. Zidell Explorations, Inc. v. Conval International, Ltd., 719 F2d 1465 (1983)

 

      72.3130

 

NOTES OF DECISIONS

 

      Seller’s introduction of representation by third party into bargaining process so representation is basis for bargain is sufficient to create warranty by seller. Autzen v. Taylor Lumber Sales, Inc., 280 Or 783, 572 P2d 1322 (1977)

 

      Representation may be part of basis for bargain even though not part of basis for forming contract. Autzen v. Taylor Lumber Sales, Inc., 280 Or 783, 572 P2d 1322 (1977)

 

      Representation that hay baler was only two years old and had been used only one year was express warranty as it was statement of fact material to bargain in view of plaintiff’s express criterion that baler be newer than his former machine and fact that representation was innocently made in reliance on information supplied by third party was immaterial. Miller v. Hubbard-Wray Co., 52 Or App 897, 630 P2d 880 (1981), Sup Ct review denied, as modified by 53 Or App 531, 633 P2d 1 (1981)

 

      In breach of warranty action involving sale of diesel fuel tanks, certain preproduction tanks made from molds could provide basis for jury to find those tanks were presented as model of strength of material and of manufacturing process; warranties under sales provisions of Commercial Code are not limited to verbal representations by seller and extend to samples or models exhibited as representation of what is being sold. Barton v. Tra-Mo, Inc., 69 Or App 295, 686 P2d 423 (1984), as modified by 73 Or App 804, 699 P2d 1182 (1985), Sup Ct review denied

 

      Express warranty made by manufacturer selling to dealer can extend to remote purchasers such as consumers. Kelly v. Olinger Travel Homes, Inc., 200 Or App 635, 117 P3d 282 (2005), Sup Ct review denied

 

LAW REVIEW CITATIONS: 11 WLJ 12 (1974)

 

      72.3140

 

NOTES OF DECISIONS

 

      A municipal corporation engaged in the business of supplying water to its inhabitants is engaged in an undertaking of a private nature and is generally liable therein for breach of contract or for negligence as a private corporation would be, but is not subject to an implied warranty of merchantability. Coast Laundry, Inc. v. Lincoln City, 9 Or App 521, 497 P2d 1224 (1972)

 

      The seller was shown to have breached implied warranties of merchantability and fitness for a particular purpose. Valley Iron and Steel Co. v. Thorin, 278 Or 103, 562 P2d 1212 (1977)

 

      In products liability action against manufacturer, where defective product was purchased from manufacturer’s distributor rather than from manufacturer itself, there was no “privity of contract” and thus implied warranty of merchantability was not applicable to transaction. Davis v. Homasote Company, 281 Or 383, 574 P2d 1116 (1978)

 

      Evidence, inter alia, that buyer gave no specifications for electronic control unit, that buyer relied upon seller’s skill and judgment in its design and manufacture unit, and that buyer’s inspection did not reveal latent defects, was sufficient to establish existence of implied warranty of fitness for particular purpose. Controltek, Inc. v. Kwikee Enterprises, Inc., 284 Or 123, 585 P2d 670 (1978)

 

      Reliance is not necessary element of implied warranty of merchantability. B.W. Feed v. General Equipment Co., 44 Or App 285, 605 P2d 1205 (1980)

 

LAW REVIEW CITATIONS: 11 WLJ 12, 21-35 (1974); 28 WLR 565 (1992)

 

      72.3150

 

NOTES OF DECISIONS

 

      A municipal corporation engaged in the business of supplying water to its inhabitants is engaged in an undertaking of a private nature and is generally liable therein for breach of contract or for negligence as a private corporation would be, but is not subject to an implied warranty of fitness for a particular purpose. Coast Laundry, Inc. v. Lincoln City, 9 Or App 521, 497 P2d 1224 (1972)

 

      The seller was shown to have breached implied warranties of merchantability and fitness for a particular purpose. Valley Iron and Steel Co. v. Thorin, 278 Or 103, 562 P2d 1212 (1977)

 

      In products liability action against manufacturer, where defective product was purchased from distributor and not from manufacturer, there was no “privity of contract” between consumer and manufacturer and thus implied warranty of fitness for particular purpose was not applicable to consumer. Davis v. Homasote Company, 281 Or 383, 574 P2d 1116 (1978)

 

      Evidence, inter alia, that buyer gave no specifications for electronic control unit, that buyer relied upon seller’s skill and judgment in its design and manufacture unit, and that buyer’s inspection did not reveal latent defects, was sufficient to establish existence of implied warranty of fitness for particular purpose. Controltek, Inc. v. Kwikee Enterprises, Inc., 284 Or 123, 585 P2d 670 (1978)

 

      Representation that hay baler was only two years old and had been used only one year was express warranty as it was statement of fact material to bargain in view of plaintiff’s express criterion that baler be newer than his former machine and fact that representation was innocently made in reliance on information supplied by third party was immaterial. Miller v. Hubbard-Wray Co., 52 Or App 897, 630 P2d 880 (1981), Sup Ct review denied, as modified by 53 Or App 531, 633 P2d 1 (1981)

 

LAW REVIEW CITATIONS: 28 WLR 565 (1992)

 

      72.3160

 

NOTES OF DECISIONS

 

      Oral representation that hay baler was only two years old and had only been used one year was express warranty in view of plaintiff’s express criterion that baler be newer than his present machine and, where warranty conflicted with written disclaimer, warranty prevailed over disclaimer. Miller v. Hubbard-Wray Co., 52 Or App 897, 630 P2d 880 (1981), Sup Ct review denied, as modified by 53 Or App 531, 633 P2d 1 (1981)

 

      Where disclaimer is in large, boldfaced print, entirely in capital letters and labeled a disclaimer, it is conspicuous under this section. Agristor Credit Corp. v. Schmidlin, 601 F Supp 1307 (1985)

 

      72.3180

 

NOTES OF DECISIONS

 

      Warranty provision of this section does not extend to parties claiming damages for personal injury where parties are not in privity of contract with seller. Colvin v. FMC Corp., 43 Or App 709, 604 P2d 157 (1979)

 

LAW REVIEW CITATIONS: 28 WLR 565 (1992)

 

      72.3190

 

NOTES OF DECISIONS

 

      Because of a custom in trade requiring the consignee who unloads a barge to pay demurrage for delays, the failure of the shippers to notify the ultimate consignee was immaterial. Shaver Trans. Co. v. Louis Dreyfus Corp., 414 F Supp 1040 (1976)

 

      72.3260

 

NOTES OF DECISIONS

 

      In dispute between consignor and creditor of consignee as to priority in consigned goods, proof that creditor actually knew of consignment before becoming creditor is sufficient to meet requirements of ORS 72.3260 (3)(b). Belmont International v. American International, 313 Or 112, 831 P2d 15 (1992)

 

      72.4030

 

NOTES OF DECISIONS

 

      Since a purchaser of converted property has no better title than that of the seller, the defendant was liable to the plaintiff for the property or its value. Whitlock v. Hogrefe, 278 Or 739, 565 P2d 1092 (1977)

 

LAW REVIEW CITATIONS: 17 WLR 843 (1981)

 

      72.6020

 

NOTES OF DECISIONS

 

      Because the buyer rightfully revoked acceptance under ORS 72.6080, the buyer had no further obligation as to the returned goods. Valley Iron and Steel Co. v. Thorin, 278 Or 103, 562 P2d 1212 (1977)

 

      72.6060

 

NOTES OF DECISIONS

 

      Where defendant buyer leased equipment to a third party who found it unacceptable, use of the equipment by the lessee as part of its initial inspection and by defendant in the course of an effort to correct problems with the equipment was not an acceptance through doing an act inconsistent with seller’s ownership under this section. Can-Key Industries v. Industrial Leasing Corp., 286 Or 173, 593 P2d 1125 (1979)

 

      Where buyer was permitted to retain possession of motorhome pending outcome of action, isolated instance of use was not act inconsistent with seller’s ownership and did not constitute reacceptance. Steers Security Inc. v. Sportscoach Corp., 99 Or App 363, 781 P2d 1267 (1989)

 

      72.6070

 

NOTES OF DECISIONS

 

      When the facts are undisputed the appellate court must rule as a matter of law that the notice was or was not timely. Metro Inv. Corp. v. Portland Rd. Lbr. Yard, Inc., 263 Or 76, 501 P2d 312 (1972)

 

      Ordinarily, whether or not the notice was timely is a question of fact for the trier of fact and a finding on such issue will not be disturbed on appeal. Metro Inv. Corp. v. Portland Rd. Lbr. Yard, Inc., 263 Or 76, 501 P2d 312 (1972)

 

      Where the buyer’s initial notice satisfies the statute, his failure to renew his complaint for two years does not act as a statute of limitations and inflexibly cut off his right to assert his claim. Metro Inv. Corp. v. Portland Rd. Lbr. Yard, Inc., 263 Or 76, 501 P2d 312 (1972)

 

      Provision for buyer to give seller notice of breach of warranty suit makes no change in law requiring proof of facts establishing right of indemnity, and contemplates no duty to defend in advance of such proof. U.S. Fire Ins. Co. v. Chrysler Motors, 264 Or 362, 505 P2d 1137 (1973)

 

      Seller, who was notified of defects in lumber within one month from date that first batch of large shipment of lumber was processed through buyer’s dry kiln, received timely notice within meaning of this section. Oregon Lumber v. Dwyer Overseas Timber Products, 280 Or 437, 571 P2d 884 (1977)

 

      72.6080

 

NOTES OF DECISIONS

 

      A buyer may revoke acceptance on account of material misrepresentation by the seller. Melms v. Mitchell, 266 Or 208, 512 P2d 1336 (1973)

 

      A buyer seeking cancellation on the grounds of misrepresentation must return what he has received under the contract. Melms v. Mitchell, 266 Or 208, 512 P2d 1336 (1973)

 

      A seller does not have an unlimited amount of time to cure the nonconformity. Jorgensen v. Pressnall, 274 Or 285, 545 P2d 1382 (1976)

 

      The nonconformity must substantially impair the value of the goods to the purchaser. Jorgensen v. Pressnall, 274 Or 285, 545 P2d 1382 (1976)

 

      Revocation of acceptance is permissible not only where there is complete impairment, but also where the impairment is substantial but not complete. Jorgensen v. Pressnall, 274 Or 285, 545 P2d 1382 (1976)

 

      Because the buyer rightfully revoked acceptance under this section due to the unfitness of the goods, the buyer had no further obligation as to the returned goods. Valley Iron and Steel Co. v. Thorin, 278 Or 103, 562 P2d 1212 (1977)

 

      Where automobile buyer bought automobile from dealer, and there was no evidence that dealer was acting as manufacturer’s agent in sale, buyer could not revoke acceptance as to manufacturer. Clark v. Ford Motor Co., 46 Or App 521, 612 P2d 316 (1980)

 

      Where buyer selected automobile in dealer’s showroom and contract was for sale of particular automobile, buyer could not revoke his acceptance as to dealer on ground of “nonconformity.” Clark v. Ford Motor Co.,, 46 Or App 521, 612 P2d 316 (1980)

 

      That hay baler did not comply with express warranty constituted non-conformity under this section and evidence was sufficient to show that revocation was proper and timely. Miller v. Hubbard-Wray Co., 52 Or App 897, 630 P2d 880 (1981), Sup Ct review denied, as modified by 53 Or App 531, 633 P2d 1 (1981)

 

      Revocation of acceptance is combination of buyer’s refusal to keep nonconforming goods accepted coupled with notification thereof to seller. Custom Harv. Oregon v. Smith Truck & Tractor, 75 Or App 274, 706 P2d 186 (1985)

 

      Under ORS 72.7190, if limited and exclusive remedy of repair and replacement fails because seller was unwilling or unable to repair and buyer thus loses substantial benefit of bargain, then remedy has failed of essential purpose and other remedies are restored including revocation of acceptance under this section. Young v. Hessel Tractor & Equipment Co., 99 Or App 262, 782 P2d 164 (1989), Sup Ct review denied, as modified by C.I.T. Group/Equipment Financing, Inc. v. Young, 99 Or App 270, 782 P2d 169 (1989)

 

      Where there are issues of fact as to requirements of nonconformity and substantial impairment of value which plaintiff must prove to prevail in rescission claim, trial court erred in granting plaintiff’s summary judgment motion. Claxton v. Boothe, 101 Or App 416, 790 P2d 1201 (1990), Sup Ct review denied

 

      72.6150

 

NOTES OF DECISIONS

 

      Where seller seasonably gives notice that delivery is impossible due to strike at supplier facility, performance qualifies as “impracticable.” Glassner v. Northwest Lustre Craft Co., 39 Or App 175, 591 P2d 419 (1979)

 

      72.7030

 

NOTES OF DECISIONS

 

      Where buyer failed to purchase goods from seller and breached sales contract, seller can recover market price damages even if market price damages exceed resale price damages. Peace River Seed Co-Op v. Proseeds Marketing, 355 Or 44, 322 P3d 531 (2014)

 

      72.7060

 

NOTES OF DECISIONS

 

      Where plaintiff, in resale transactions under this section, inter alia, conducted fictitious “wash” sale in order to inflate its claim, sale was unreasonable and recovery under this section was not allowed. Coast Trading Co. v. Cudahy Co., 592 F2d 1074 (1979)

 

      72.7080

 

NOTES OF DECISIONS

 

      Measurement of damages based on lost profit may include any situation where plaintiff availing self of available market would not substantially mitigate damages. Timber Access Ind. Co. v. U.S. Plywood-Champion Papers, Inc., 263 Or 509, 503 P2d 482 (1972)

 

      Where allowing full measure of damages under this section would amount to windfall, plaintiff was entitled to compensatory award, but only up to actual loss amount recoverable under ORS 72.7060. Coast Trading Co. v. Cudahy Co., 592 F2d 1074 (1979)

 

      Where vanishing market makes market price-contract price measure of damages inadequate, lost profits may be recovered and both measures may be submitted to jury if evidence would justify award under either. Stanfill v. TAT (USA) Corp., 76 Or App 332, 709 P2d 717 (1985), Sup Ct review denied

 

      Where plaintiff is “lost volume seller” and is entitled to damages for lost profits, “due credit for...proceeds of resale” provision of this section does not apply because it will not yield correct recovery. Trienco, Inc. v. Applied Theory, Inc., 102 Or App 362, 794 P2d 1239 (1990)

 

      Where grass seed buyer failed to fulfill contractual obligation to purchase grass seed ordered from seller, seller is entitled to difference between contract price and market price at time of breach, even if seller is able to resell grass seed to other buyers. Peace River Seed Co-Op v. Proseeds Marketing, 253 Or App 704, 293 P3d 1058 (2012), aff’d 355 Or 44, 322 P3d 531 (2014)

 

      72.7120

 

NOTES OF DECISIONS

 

      Since the “cover” remedy’s purpose is to provide certainty for calculation of buyer’s loss-of-bargain, while also allowing buyer to attain needed goods, remedy is not intended to apply to rental. McGinnis v. Wentworth Chevrolet Co., 295 Or 494, 668 P2d 365 (1983)

 

      72.7130

 

NOTES OF DECISIONS

 

      Since the market price was less than the cost of cover, the plaintiff was entitled to use that measure as to the wheat which was actually purchased. Interior Elevator Co. v. Limmeroth, 278 Or 589, 565 P2d 1074 (1977)

 

      72.7140

 

NOTES OF DECISIONS

 

      Where buyer accepted defective carpeting and brought action for breach of warranty, measure of damages was difference between value of carpeting as warranted and value as installed; evidence of replacement cost was relevant to establish difference in value; purchase price of carpeting was evidence of value as warranted, and delay in replacement caused by negotiations between buyer and seller constituted “special circumstances” under this section. Vista St. Clair v. Landry’s Commercial Furnishings, 57 Or App 254, 643 P2d 1378 (1982)

 

      Buyer who revokes acceptance of goods is not buyer who “has accepted goods” for purposes of recovery for breach of warranty. Kelly v. Olinger Travel Homes, Inc., 200 Or App 635, 117 P3d 282 (2005), Sup Ct review denied

 

      72.7150

 

NOTES OF DECISIONS

 

      Consequential damages can include lost profit. Melms v. Mitchell, 266 Or 208, 512 P2d 1336 (1973)

 

      Where parties to purchase of agricultural insecticide knew about importance of bees for pollination of blueberries and maker of insecticide warranted it reasonably fit to use on blueberries if applied while bees were not visiting area, damage resulting from breach of warranty would be “consequential” and fall within maker’s exclusion, under warranty, for consequential damage. Duyck v. Northwest Chemical Corp., 94 Or App 111, 764 P2d 943 (1988), Sup Ct review denied

 

      When, after seller’s breach, buyer is unable to cover by purchasing substitute goods and when it was reasonable for buyer not to bid on identical goods at higher price, buyer’s damages would not be reduced because of failure to mitigate damages by cover or otherwise. Calbag Metals Co. v. Guy F. Atkinson Co., 95 Or App 514, 770 P2d 600 (1989)

 

LAW REVIEW CITATIONS: 28 WLR 565 (1992)

 

      72.7170

 

NOTES OF DECISIONS

 

      Summary judgment was not appropriate where buyer refused to pay invoiced price in contract to fulfill buyer’s resin requirements because issues of fact remained concerning contact performance, damages and set-off. Pacific Western Resin Co. v. Condux Pipe Systems, Inc., 771 F Supp 313 (1991)

 

LAW REVIEW CITATIONS: 52 OLR 463 (1973)

 

      72.7180

 

NOTES OF DECISIONS

 

      Liquidated damages provision of this section may apply in analyzing validity of liquidated damages provisions in contracts in general. Illingworth v. Bushong, 297 Or 675, 688 P2d 379 (1984)

 

      Provision in exclusive sales agreement calling for sales commission of 10 percent of sales price “in the event of any sale, contract to sell or exchange or conveyance of said [real] property by [seller] during the life of this contract or renewal or extension thereof” is not liquidated damages clause but clause that is enforceable in action for debt owed under contract. DiTommaso Realty, Inc. v. Moak Motorcycles, Inc., 309 Or 190, 785 P2d 343 (1990)

 

      72.7190

 

NOTES OF DECISIONS

 

      Where no limitation of consequential damages was expressed in warranty at time of sale and limited warranty was neither presented to nor acknowledged by buyer until about two weeks after delivery of unit, there was no consideration to support limited warranty. Gaha v. Taylor-Johnson Dodge, 53 Or App 471, 632 P2d 483 (1981)

 

      If limited and exclusive remedy of repair and replacement fails because seller was unwilling or unable to repair and buyer thus loses substantial benefit of bargain, then other remedies are restored including revocation of acceptance under ORS 72.6080. Young v. Hessel Tractor & Equipment Co., 99 Or App 262, 782 P2d 164 (1989), Sup Ct review denied, as modified by C.I.T. Group/Equipment Financing, Inc. v. Young, 99 Or App 270, 782 P2d 169 (1989)

 

      Substitute or additional contractual remedy may provide for windfall to party notwithstanding statutory Uniform Commercial Code purpose of restoring party to same position. Wagner v. McNeely, 161 Or App 215, 984 P2d 943 (1999)

 

      72.7210

 

NOTES OF DECISIONS

 

      Remedies for material misrepresentation or fraud are extended by this section to coincide in scope with those for non-fraudulent breach, and plaintiff was entitled to recover lost profits. Deerfield Commodities v. Nerco, Inc., 72 Or App 305, 696 P2d 1096 (1985), Sup Ct review denied

 

      72.7250

 

NOTES OF DECISIONS

 

      An action to recover a surplus from the resale of an article upon an agreed foreclosure is not governed by this section. Chaney v. Fields Chev. Co., 264 Or 21, 503 P2d 1239 (1972)

 

      This limitation period governs when plaintiff’s complaint alleges an action for personal injuries caused by breach of warranties implied in a contract for the sale of goods. Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973)

 

      A house is “improvement to real property” within meaning of ORS 12.135, and thus breach of warranty action with respect to sale of house is not governed by this section. Sponseller v. Meltebeke, 280 Or 361, 570 P2d 974 (1977)

 

      Action seeking money, damages or property damage to helicopter that resulted when helicopter’s design gear collapsed allegedly due to design defect was not governed by this section. Bancorp Leasing and Financial Corp. v. Agusta Aviation Corp., 813 F2d 272 (1987)

 

      Where account or account stated claim involves underlying sale of goods, 4-year limitation period of this section applies rather than 6-year period of ORS 12.080. Moorman Manufacturing Co. v. Hall, 113 Or App 30, 830 P2d 606 (1992), Sup Ct review denied

 

      Implied warranty of fitness for particular purpose is not warranty that extends to future performance of goods. Permapost Products Co. v. Osmose, Inc., 200 Or App 699, 116 P3d 909 (2005)

 

      Warranty extending to future performance is created by affirmation of fact, promise or description of goods that becomes part of basis for bargain, that explicitly extends to future performance and for which discovery of breach must await future performance. Hunter v. Woodburn Fertilizer, Inc., 208 Or App 242, 144 P3d 970 (2006), Sup Ct review denied

 

LAW REVIEW CITATIONS: 52 OLR 91-104 (1972); 28 WLR 565 (1992)

 

      72.8100

 

NOTES OF DECISIONS

 

      Where automobile dealer was designated as manufacturer’s agent for warranty work, buyer’s return of automobile to dealer was return to warrantor within meaning of this section, and manufacturer was obligated to reimburse buyer. Clark v. Ford Motor Co., 46 Or App 521, 612 P2d 316 (1980)