postage or cost of transmission provided for and properly addressed and in the case of an instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances. The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending. (40) "Signed" includes any symbol executed or adopted by a party with present intention to authenticate a writing. (41) "Surety" includes guarantor. (42) "Telegram" includes a message transmitted by radio, teletype, cable, any mechanical method of transmission, or the like. (43) "Term" means that portion of an agreement which relates to a particular matter. (44) "Unauthorized" signature or indorsement means one made without actual, implied or apparent authority and includes a forgery. (45) "Value". Except as otherwise provided with respect to negotiable instruments and bank collections (sections 28:3-303, 28:4-208 and 28:4-209) a person gives "value" for rights if he acquires them (a) in return for a binding commitment to extend credit or for the extension of immediately available credit whether or not drawn upon and whether or not a charge-back is provided for in the event of difficulties in collection; or (b) as security for or in total or partial satisfaction of a pre-existing claim; or or (c) by accepting delivery pursuant to a pre-existing contract for purchase; (d) generally, in return for any consideration sufficient to support a simple contract. (46) "Warehouse receipt" means a receipt issued by a person engaged in the business of storing goods for hire. (47) "Written" or "writing" includes printing, typewriting or any other intentional reduction to tangible form. § 28:1-202. Prima facie evidence by third party documents A document in due form purporting to be a bill of lading, policy or certificate of insurance, official weigher's or inspector's certificate, consular invoice, or any other document authorized or required by the contract to be issued by a third party shall be prima facie evidence of its own authenticity and genuineness and of the facts stated in the document by the third party. § 28:1-203. Obligation of good faith Every contract or duty within this subtitle imposes an obligation of good faith in its performance or enforcement. § 28:1-204. Time; reasonable time; "seasonably" (1) Whenever this subtitle requires any action to be taken within a reasonable time, any time which is not manifestly unreasonable may be fixed by agreement. (2) What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action. (3) An action is taken "seasonably" when it is taken at or within the time agreed or if no time is agreed at or within a reasonable time. § 28:1-205. Course of dealing and usage of trade (1) A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct. (2) A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. If it is established that such a usage is embodied in a written trade code or similar writing the interpretation of the writing is for the court. (3) A course of dealing between parties and any usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware give particular meaning to and supplement or qualify terms of an agreemert. (4) The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade and course of dealing controls usage of trade. (5) An applicable usage of trade in the place where any part of performance is to occur shall be used in interpreting the agreement as to that part of the performance. (6) Evidence of a relevant usage of trade offered by one party is not admissible unless and until he has given the other party such notice as the court finds sufficient to prevent unfair surprise to the latter. § 28:1-206. Statute of frauds for kinds of personal property not otherwise covered (1) Except in the cases described in subsection (2) of this section a contract for the sale of personal property is not enforceable by way of action or defense beyond five thousand dollars in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by his authorized agent. (2) Subsection (1) of this section does not apply to contracts for the sale of goods (section 28:2-201) nor of securities (section 28:8-319) nor to security agreements (section 28:9-203). § 28:1-207. Performance or acceptance under reservation of rights A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as "without prejudice", "under protest" or the like are sufficient. § 28:1-208. Option to accelerate at will A term providing that one party or his successor in interest may accelerate payment or performance or require collateral or additional collateral "at will" or "when he deems himself insecure" or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised. ARTICLE 2-SALES PART 1-SHORT TITLE, GENERAL CONSTRUCTION AND SUBJECT MATTER Sec. 28:2-101. Short title. 28:2-102. Scope; certain security and other transactions excluded from this article. 28:2-103. Definitions and index of definitions. 28:2-104. Definitions: "Merchant"; "between merchants"; "financing agency". 28:2-105. Definitions: transferability; "goods"; "future" goods; "lot": "commercial unit". 28:2-106. Definitions: "contract"; "agreement"; "contract for sale"; "sale"; "present sale"; "conforming" to contract; "termination"; "cancellation". 28:2-107. Goods to be severed from realty: recording. 28:2-306. Output, requirements and exclusive dealings. 28:2-308. Absence of specified place for delivery. 28:2-307. Delivery in single lot or several lots. 28:2-309. Absence of specific time provisions; notice of termination. 28:2-310. Open time for payinent or running of credit; authority to ship under reservation. 28:2-311. Options and cooperation respecting performance. 28:2-312. Warranty of title and against infringement; buyer's obligation against infringement. 28:2-313. Express warranties by affirmation, promise, description, sample. 28:2-314. Implied warranty: merchantability; usage of trade. 28:2-315. Implied warranty: fitness for particular purpose. 28:2-316. Exclusion or modification of warranties. 28:2-317. Cumulation and conflict of warranties express or implied. 28:2-318. Third party beneficiaries of warranties express or implied. 28:2-319. F.O.B. and F.A.S. terms. 28:2-320. C.I.F. and C. & F. terms. 28:2-321. C.I.F. or C. & F.: "net landed weights;" "payment on arrival"; warranty of condition on arrival; 28:2-322. Delivery "ex-ship". 28:2-323. Form of bill of lading required in overseas shipment; "overseas". 28:2-324. "No arrival, no sale" term. 28:2-325. "Letter of credit" term; "confirmed credit". 28:2-326. Sale on approval and sale or return; consignment sales and rights of creditors. 28:2-327. Special incidents of sale on approval and sale or return. 28:2-328. Sale by auction. PART 4-TITLE, CREDITORS AND GOOD FAITH PURCHASES 28:2-401. Passing of title; reservation for security; limited application of this section. 28:2-402. Rights of seller's creditors against sold goods. 28:2-403. Power to transfer; good faith purchase of goods; "entrusting". PART 5-PERFORMANCE 28:2-501. Insurable interest in goods; manner of identification of goods. 28:2-502. Buyer's right to goods on seller's insolvency. 28:2-503. Manner of seller's tender of delivery. 28:2-504. Shipment by seller. 28:2-505. Seller's shipment under reservation. 28:2-506. Rights of financing agency. 28:2-507. Effect of seller's tender; delivery on condition. 28:2-508. Cure by seller of improper tender or delivery; replacement. 28:2-509. Risk of loss in the absence of breach. 28:2-510. Effect of breach on risk of loss. 28:2-511. Tender of payment by buyer; payment by check. 28:2-512. Payment by buyer before inspection. 28:2-513. Buyer's right to inspection of goods. 28:2-514. When documents deliverable on acceptance; when on payment. 28:2-515, Preserving evidence of goods in dispute. PART 6-BREACH, REPUDIATION AND EXCUSE 28:2-601. Buyer's rights on improper delivery. 28:2-603. Merchant buyer's duties as to rightfully rejected goods. 28:2-605. Waiver of buyer's objections by failure to particularize. 28:2-606. What constitutes acceptance of goods. 28:2-607. Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over. 28:2-608. Revocation of acceptance in whole or in part. 28:2-609. Right to adequate assurance of performance. 28:2-610. Anticipatory repudiation. 28:2-611. Retraction of anticipatory repudiation. 28:2-612. "Installment contract"; breach. 28:2-613. Casualty to identified goods. 28:2-614. Substituted performance. 28:2-615. Excuse by failure of presupposed conditions. 28:2-616. Procedure on notice claiming excuse. PART 7-REMEDIES 28:2-701. Remedies for breach of collateral contracts not impaired. 28:2-702, Seller's remedies on discovery of buyer's insolvency. 28:2-703. Seller's remedies in general. 28:2-704. Seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods. 28:2-705. Seller's stoppage of delivery in transit or otherwise. 28:2-706. Seller's resale including contract for resale. 28:2-707. "Person in the position of a seller". 28:2-708. Seller's damages for non-acceptance or repudiation. 28:2-709. Action for the price. 28:2-710. Seller's incidental damages. 28:2-711. Buyer's remedies in general; buyer's security interest in rejected goods. 28:2-712. "Cover"; buyer's procurement of substitute goods. 28:2-713. Buyer's damages for non-delivery or repudiation. 28:2-714. Buyer's damages for breach in regard to accepted goods. 28:2-715. Buyer's incidental and consequential damages. 28:2-716. Buyer's right to specific performance or replevin. 28:2-717. Deduction of damages from the price. 28:2-718. Liquidation or limitation of damages; deposits. 28:2-719. Contractual modification or limitation of remedy. 28:2-720. Effect of "cancellation" or "rescission" on claims for antecedent breach. 28:2-721. Remedies for fraud. 28:2-722. Who can sue third parties for injury to goods. 28:2-723. Proof of market price: time and place. 28:2-724. Admissibility of market quotations. 28:2-725. Statute of limitations in contracts for sale. PART 1—SHORT TITLE, GENERAL CONSTRUCTION AND SUBJECT § 28:2-101. Short title MATTER This article shall be known and may be cited as Uniform Commercial CodeSales. § 28:2-102. Scope; certain security and other transactions excluded from this article Unless the context otherwise requires, this article applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this article impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers. § 28:2-103. Definitions and index of definitions (1) In this article unless the context otherwise requires (a) "Buyer" means a person who buys or contracts to buy goods. (b) "Good faith" in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade. (c) "Receipt" of goods means taking physical possession of them. (d) "Seller" means a person who sells or contracts to sells goods. (2) Other definitions applying to this article or to specified parts thereof, and the sections in which they appear are: "Acceptance". Section 28:2-606. "Banker's credit". Section 28:2-325. "Commercial unit". Section 28:2-105. "Conforming to contract". Section 28:2-106. "Contract for sale". Section 28:2-106. "Cover". Section 28:2-712. "Entrusting". Section 28:2-403. "Financing agency". Section 28:2-104. "Future goods". Section 28:2-105. "Goods". Section 28:2-105. "Identification". Section 28:2-501. "Installment contract". Section 28:2-612. "Letter of Credit". Section 28: 2-325. "Lot". Section 28: 2-105. "Merchant". Section 28: 2-104. "Overseas". Section 28: 2-323. "Person in position of seller". Section 28: 2-707. "Sale". Section 28: 2-106. "Sale on approval". Section 28: 2-326. "Sale or return". Section 28: 2-326. "Termination". Section 28: 2-106. (3) The following definitions in other articles apply to this article: "Check". Section 28: 3–104. "Consignee". Section 28: 7-102. "Consignor". Section 28: 7—102. "Consumer goods". Section 28: 9-109. "Dishonor". Section 28: 3-507. "Draft". Section 28: 3-104. (4) In addition article 1 contains general definitions and principles of construction and interpretation applicable throughout this article. § 28:2-104. Definitions: "merchant"; "between merchants"; "financing agency" (1) "Merchant" means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. (2) "Financing agency" means a bank, finance company or other person who in the ordinary course of business makes advances against goods or documents of title or who by arrangement with either the seller or the buyer intervenes in ordinary course to make or collect payment due or claimed under the contract for sale, as by purchasing or paying the seller's draft or making advances against it or by merely taking it for collection whether or not documents of title accompany the draft. 'Financing agency" includes also a bank or other person who similarly intervenes between persons who are in the position of seller and buyer in respect to the goods (section 28:2-707). (3) "Between merchants" means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants. § 28:2-105. Definitions: transferability; "goods"; "future" goods; "lot"; "commercial unit" (1) "Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (article 8) and things in action. "Goods" also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (section 28:2-107). (2) Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell. (3) There may be a sale of a part interest in existing identified goods. (4) An undivided share in an identified bulk of fungible goods is sufficiently identified to be sold although the quantity of the bulk is not determined. Any agreed proportion of such a bulk or any quantity thereof agreed upon by number, weight or other measure may to the extent of the seller's interest in the bulk be sold to the buyer who then becomes an owner in common. (5) "Lot" means a parcel or a single article which is the subject matter of a separate sale or delivery, whether or not it is sufficient to perform the contract. (6) "Commercial unit" means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use. A commercial unit may be a single article (as a machine) or a set of articles (as a suite of furniture or an assortment of sizes) or a quantity (as a bale, gross, or carload) or any other unit treated in use or in the relevant market as a single whole. § 28:2-106. Definitions: "contract"; "agreement"; "contract for sale"; "sale"; "present sale"; "conforming" to contract; "termination"; "cancellation" (1) In this article unless the context otherwise requires "contract" and "agree ment" are limited to those relating to the present or future sale of goods. "Con tract for sale" includes both a present sale of goods and a contract to sell goods at a future time. A "sale" consists in the passing of title from the seller to the buyer for a price (section 28:2-401). A "present sale" means a sale which is accomplished by the making of the contract. (2) Goods or conduct including any part of a performance are "conforming" or conform to the contract when they are in accordance with the obligations under the contract. (3) "Termination" occurs when either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach. On "termination" all obligations which are still executory on both sides are discharged but any right based on prior breach or performance survives. (4) "Cancellation" occurs when either party puts an end to the contract for breach by the other and its effect is the same as that of "termination" except that the cancelling party also retains any remedy for breach of the whole contract or any unperformed balance. § 28:2-107. Goods to be severed from realty: recording (1) A contract for the sale of timber, minerals or the like or a structure or its materials to be removed from realty is a contract for the sale of goods within this article if they are to be severed by the seller but until severance a purported present sale thereof which is not effective as a transfer of an interest in land is effective only as a contract to sell. (2) A contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto but not described in subsection (1) is a contract for the sale of goods within this article whether the subject matter is to be severed by the buyer or by the seller |