Jakowski v. Carole Chevrolet, Inc. - 180 N.J. Super. 122, 433 A.2d 841 (Super. Ct. 1981)

Rule:

Pursuant to N.J. Stat. Ann. § 12A:2-711 a buyer is entitled to a refund of so much of the purchase price as has been paid to a seller where goods fail to conform to the contract of sale and the seller later loses the goods.

Facts:

The day after plaintiff buyer took home a car bought from defendant corporate seller, defendant contacted plaintiff and informed him that the car delivered to him lacked polymer coatings as agreed upon and defendant instructed plaintiff to return the car so that the coatings could be applied. Plaintiff returned the auto to defendant for application of the coatings, but the car was stolen from defendant's premises and was never recovered. Defendant refused to provide a replacement for buyer or to refund the purchase price. Plaintiff remained accountable on the loan for the purchase of the car. Therefore, plaintiff brought an action for breach of contract against defendant and moved for summary judgment.

Issue:

Under the circumstances, did the risk of loss remain on the part of the seller? 

Answer:

Yes.

Conclusion:

The court held that the car failed to conform to the requirements of the sales contract, plaintiff never accepted it, and the defect was never cured. Accordingly, the risk of loss remained on the seller and judgment was granted for plaintiff. The court found that plaintiff was entitled to a refund of the purchase price that was paid to defendant, including the finance charges incurred by plaintiff.