Lloyd's Maritime and Commercial Law Quarterly
SELLER CURE IN THE SALE OF GOODS
Rex J. Ahdar*
Introduction
Does a seller have a right to “cure” defects under the Sale of Goods Act 1979? The purpose of this article is to address what one might have supposed to be a straightforward question. In the United States, the answer is a resounding yes. Section 2–508 of the Uniform Commercial Code gives sellers the right to cure non-conforming goods following rejection by the buyer. In the Commonwealth, however, the picture is not so clear. Despite Professor Goode’s confident assertion of such a right,1 a fairer summary of the position is that by the Law Commissions in 1983:
There is great uncertainty, at least in English law, as to the existence or extent of the seller’s right to repair or replace defective goods.2
Notwithstanding uncertainty as to the existence or ambit of seller cure, there is little disagreement that such a right, appropriately circumscribed, is highly desirable. Encouraging the parties to resolve their differences while keeping the deal together and minimizing economic waste are two of the most common justifications. Policy arguments, reform recommendations and overseas experience will be canvassed later. The first step, however, must be to examine the current state of the law.
Current law
In England and in Commonwealth jurisdictions which have replicated the original 1893 Sale of Goods Act, does the seller have a right to “cure” defective goods? Cure embraces repair, replacement or otherwise re-tendering of goods which do not conform. An initial dichotomy is traditionally drawn between whether cure is attempted before or after the time for performance (or due delivery date) has occurred.3
* Faculty of Law, University of Otago
1. R.M. Goode, Commercial Law (1982) (hereafter “Goode”), 298–299.
2. Sale and Supply of Goods, Law Com. W.P. No. 85, Scot. Law Com. Consultative Memo. No. 58 (1983), para. 2.38.
3. See U.C.C., s. 2–508
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