Sales and Leases - A Problem-based Approach, 2016a

Chapter 13. Acceptance; Revocation of Acceptance
13.1. Acceptance. Note that as used in this chapter, the term “acceptance” refers to the buyer’s
acceptance of the goods which the buyer has agreed to purchase under a previously formed
contract. It does not refer to acceptance of an offer which leads to formation of a contract.
As discussed in Chapter 12, the perfect tender rule favors the buyer, and allows the buyer to
reject for any non-conformity, subject to certain important limitations (including the obligation to
notify the seller of rejection and the seller’s right, in certain circumstances, to cure the defect).
Once a buyer has accepted the goods, the rules shift to favor the seller. After acceptance, the
buyer may no longer reject the goods for any non-conformity. Section 2-607(2). The buyer does
have a more limited right, described as revocation of acceptance (the more stringent elements of
which are discussed at § 13.3 below). Under § 2-606(1), acceptance occurs in one of three ways:
13.1.1. Acceptance occurs after a reasonable opportunity to inspect the goods, if the
buyer signifies to the seller that either (i) the goods are conforming or (ii) that the buyer
will take or retain the goods in spite of their non-conformity.
13.1.1.1. Comment 3 states that “payment made after tender is always one
circumstance tending to signify acceptance of the goods but in itself it can never
be more than one circumstance and is not conclusive.” (Emphasis supplied.)
13.1.1.2. As we discussed in Chapter 12, what constitutes a “reasonable
opportunity to inspect” is a question of fact. Comment 2 states that course of
performance, course of dealing, and usage of trade will be important in
determining what is “reasonable.”
13.1.1.3. Note that if a buyer accepts the goods in spite of their non-conformity,
the buyer is not out of luck. The buyer may have a claim for damages arising from
the non-conformity or, as we shall see in § 13.3, may have the right to revoke
acceptance.
13.1.2. Acceptance occurs after the buyer has had a reasonable opportunity to inspect the
goods, if the buyer fails to make an effective rejection under UCC § 2-602. Recall Miron
v. Yonkers Raceway, Inc., 400 F.2d 112 (2d Cir. 1968) in § 12.4, where the court held that
failure to timely inspect and reject a racehorse resulted in acceptance.
13.1.3. The buyer accepts goods if the buyer does any act inconsistent with the seller’s
ownership. This concept is parallel to the buyer’s obligation under UCC § 2-602 not to
“exercise ownership” after the buyer has rejected the goods. However, not all uses
constitute “an act inconsistent with seller’s ownership” or an “exercise of ownership.”
For example, if the buyer only uses the goods for purposes of inspection, such as the test-
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