Under such circumstances the contract will be

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Unformatted text preview: titute, if one is available. In other words, the mere unavailability of the carrier that both parties agreed would be used will not void a contract or give rise to a breach of contract action if an alternative carrier is available. Under such circumstances, the contract will be modified as a matter of law to allow for the alternate carrier to be used. Example 7.24. Consumer orders a laser printer for $699 from ACME Mail Order Company and asks that it be shipped by UPS second-day air. If UPS is unavailable at the time that delivery is due through no fault of the seller (e.g., a labor dispute), then the seller must use a commercially reasonable alternative, such as next-day service from the U.S. Postal Service. As long as the price is reasonably similar, the consumer will not be able to object. Unforeseen Circumstances, or Excuse by Failure of Presupposed Conditions (§ 2-615) If a seller is unable to deliver in whole or in part as promised due to unforeseen circumstances beyond his control, then the seller is excused from performing, as long as he renders whatever performance is practicable under the circumstances, including part performance. If part performance is possible, the seller must allocate his production and delivery among his customers in a fair and reasonable manner. Where delayed delivery, nondelivery, or partial delivery are to be made due to unforeseen circumstances beyond the seller’s control, the seller must notify all affected customers in a timely fashion. Alligators, whether dead or alive, are goods under the UCC. imagebroker.net/SuperStock rog80328_07_c07_134-156.indd 148 Example 7.25. Buyer, the owner of a factory in Georgia that produces alligator-skin shoes, handbags, and accessories for worldwide distribution, agrees to purchase 1,000 alligator skins per year for the next five years from seller, who owns and operates an alligator farm in Florida. After the first year of the contract, seller’s alligator farm becomes infected with a previously unknown disease that affects alligators in the region and kills half of his reptilian stock before an effective treatment can be found. As a result, seller can’t ship the full 1,000 skins to buyer 10/26/12 5:52 PM CHAPTER 7 Section 7.5 The Parol Evidence Rule (§ 2-202) for that year. The seller’s obligation will be discharged if he ships as many skins as he can produce to all of his customers on a fair, prorated basis for that year. 7.5 The Parol Evidence Rule (§ 2-202) P arol evidence is external oral or written evidence that is not part of a contract. The parol evidence rule states that once parties set down the terms of their agreement in writing, no extrinsic or parol evidence of anything occurring prior to, or contemporaneously with, the writing may be used to contradict the terms of the written agreement unless fraud, duress, or mistake are alleged. Example 7.26. Buyer and Seller have a written contract for ten minivans for Buyer’s company fleet. Buyer claims that when they were negotiating, it was agreed that Seller would instal...
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This test prep was uploaded on 04/09/2014 for the course BUS 311 taught by Professor Parker during the Spring '10 term at Ashford University.

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