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This is an unofficial draft of Article 2B from April 15, 1998. For the current official version, see the University of Pennsylvania Law School (Official NCCUSL) site at http://www.law.upenn.edu/library/ulc/ulc.htm SECTION 2B-609. REFUSAL OF DEFECTIVE TENDER. (a) Subject to subsection (b) and Sections 2B-610 and 2B-611, if a tender of delivery of a copy constitutes a material breach as to the particular delivery, the party to which it is tendered may: (1) refuse the tender; (2) accept the tender; or (3) accept any commercially reasonable units and refuse the rest. (b) In a mass-market license, a licensee may refuse a tender of delivery of a copy in a contract that calls for delivery in a single lot or single tender that constitutes the initial act enabling use if the tender does not conform to the contract. Such refusal cancels the contract. (c) Refusal is ineffective unless it is made before acceptance and within a reasonable time after tender or completion of any permitted effort to cure, and the refusing party seasonably notifies the tendering party. (d) Except as otherwise provided in subsection (b), an Uniform Law Source: Combines 2-601, 2-602, 2A-509. Substantially revised. Votes: 1. The Committee adopted a "conforming tender" carve out for cases involving the tender of delivery of a copy in circumstances equivalent to those where the rule applies in Article 2. Reporter's Notes: 1. Scope and Effect. This section deals with refusal of tendered copies; it is a specific application of the general rule in Section 2B-601. The word "refuse" is used in lieu of the Article 2 term "reject" to avoid confusion with situations where a party rejects an offer or particular contract terms in an offer. The right to refuse tendered performance hinges either on the substantial nonconformity of the particular performance or on the existence of an uncured, prior material breach by the tendering party. As in existing Article 2, the right to refuse a copy is subject to the provisions on installment contracts in the next section. The installment contract rules require acceptance of a defective tender in some cases in light of the over-riding importance of the on-going relationship. 2. Conforming Tender Rule. Subsection (b) implements the "conforming tender" or "perfect tender" rule for mass market transactions under standards that are consistent with Article 2 in the sale of goods. While often described as a "perfect tender" rule, this concept does not require the tender of a "perfect" copy or, under analogous Article 2 cases, a "perfect" product. It simply displaces the material breach standard with a requirement that the tender conform to the contract. In modern commerce3, very few contracts require perfection in an absolute sense. More often, under applicable trade use standards, general product descriptions, and concepts of merchantability, what is required is a tender that is consistent with ordinary expectations under the contract description. Subsection (b) adopts current Article 2 law in determining when a tender conforms to the contract in this type of mass market transaction. 3. Effective Refusal. Subsection (c) follows current Article 2 with respect to refusal of tenders of delivery of a copy. Refusal becomes ineffective if the refusing party does not timely notify the other party of its refusal of the tender. |