Bartus v. Riccardi

55 Misc. 2d 3 (N.Y. 1967)



U.C.C. § 2-508(1) permits a seller to cure a nonconforming delivery before the expiration of the contract time by notifying the buyer of his intention to so cure and by making a delivery within the contract period.


Defendant ordered a hearing aid from plaintiff hearing aid representative. When defendant picked up his hearing aid, he was informed that the model he ordered had been modified and improved and that he would be receiving the newer model. A few days later, defendant returned the hearing aid to plaintiff, complaining that it gave him a headache and that it was not the model number that he ordered. Plaintiff offered to get defendant the original model number that he requested. Neither party mentioned anything about cancelling the contract. Defendant later refused to accept tender of the replacement. Plaintiff filed suit against defendant for the balance due on the contract.


Did the defendant owe the balance due for the contract?




The court held that plaintiff complied with the UCC § 2-508 by making a subsequent conforming tender and acting within a reasonable amount of time to notify defendant of his tender of a conforming model.

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