American Contract Law for a Global Age, 2017a

Plaintiff used the yacht for nearly three months before the day of the fire. Yet
as noted above, at no time did plaintiff reject the yacht as non-conforming. Having
failed to give any indication of rejection until after the fire, plaintiff accepted the
yacht under § 2-606(1)(b). See Ask Technologies, Inc. v. Cablescope, Inc., No. 01 Civ.
1838, 2003 U.S. Dist. LEXIS 18694, 2003 WL 22400201 (S.D.N.Y. Oct. 20, 2003)
(where buyer complained, complaints were resolved, and buyer continued to use
products for months after complaining, acceptance occurred); EPN-Delaval, S.A. v.
Inter-Equip, Inc., 542 F. Supp. 238 (S.D. Tex.1982) (where buyer stored but did not
use goods prior to inspection and rejection, acceptance occurred under § 2-606(1)(b)
since he did not inspect and discover defect within reasonable time).
In addition, plaintiff engaged in a number of acts inconsistent with ownership
in SIYS. Indeed, even in the pleadings and his deposition in this action, plaintiff has
repeatedly described himself as the owner of the yacht. No reasonable jury could find
that these actions, singly and collectively, are insufficient to constitute an acceptance
under § 2-606(1)(c).
Defendants’ motions for summary judgment are granted. The Clerk is directed
to enter judgment in favor of defendants, dismissing the complaint.
_____________________
Review Question 6. The Fanok court states that most of the defects identified
by the buyers (on the “punch list”) before launching their new yacht “were sufficiently
minor that even under the perfect tender rule, they may not have supported rejection
as opposed to an adjustment of the purchase price, as such an attempted rejection
might be indicative of bad faith.” What does the court mean by that statement and
what does it tell you about the limits of the perfect tender rule?
Review Question 7. Carefully read UCC section 2-606 (“What Constitutes
Acceptance of Goods”). Be prepared to explain exactly what Mr. Fanok did in this case
that counted as an “acceptance” of the yacht. By the way, beware of confusing
terminology here: the “acceptance” of goods in a sale has nothing to do with
“acceptance” of an offer to form a contract in the first place. In Fanok, for instance,
there was no dispute between the parties as to whether a contract existed between
them; it clearly did, and the parties were arguing over performance and breach.
_____________________
______________________________________________________________________________
UNIT 21: STANDARDS OF CONTRACT PERFORMANCE 447