Alpert v. Thomas

643 F.Supp.1406 (1986)



The four elements to proper revocation are: (1) the goods non-conformity with the contract substantially impairs the value to the buyer; (2) the buyer's acceptance was (a) forthcoming on the reasonable assumption that the non-conformity would be cured (discovery at time of acceptance) or (b) reasonably induced by the difficulty of the discovery or by the seller's assurances (no discovery at the time of acceptance); (3) revocation occurred within a reasonable time after the non-conformity was discovered or should have been discovered; and (4) revocation took place before a substantial change occurred in the condition of the goods not caused by their own defects.


Plaintiffs sued for breach of contract for the sale of a breeding horse. However, it was discovered the horse was unable to breed. Defendant counterclaimed asserting that she properly revoked acceptance of the horse because of the horse’s nonconformity to the contract.


Did the defendant properly revoke the contract on the basis of the goods' nonconformity?


Yes, the court held the contract was properly revoked.


The court found the horse’s inability to breed failed to conform to the implied and express warranties of merchantability. The “as is” clause included in the contract did not negate the warranties. As such, the defendant’s revocation was proper.

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