Mr. and Mrs. Abelman engaged the Capitol Termite Company to treat their home for

Question

Mr. and Mrs. Abelman engaged the Capitol Termite Company to treat their home for a termite infestation. The chemical used by Capitol was Gold Crest Termite manufactured by Velsicol Chemical Corporation. Velsicol sold the Gold Crest Termite to a distributor, which in turn sold it to Capitol in bulk – in 55 gallon drums. Capitol did not specifically buy materials for each termite job. One 55-gallon drum would service many homes. Employees for Capitol pumped the chemical from the 55-gallon drums into a 5-gallon pail at Capitol’s premises. The solution was then poured from the 5-gallon pail into a 1-gallon pail, which they filled half-full. Next, the half-gallon of Gold Crest Termite was poured into a fixed 50-gallon tank on the back of Capitol’s trucks and then the tank was filled to capacity with water. This solution was then applied to the Abelman’s residence by employees of Capitol. The Abelmans abandoned their home the day after Capitol completed treatment. Three years later they brought suit against Capitol and Velsicol contending that the termiticide had caused personal injuries and property damages.   Among other things, they claimed there was a breach of express and implied warranties provided by the Uniform Commercial Code. Velsicol and Capitol sought to dismiss these claims on the ground that there had not been a sale of goods and thus no warranties had arisen. Was the contract to obtain treatment for termites a sale of goods under the UCC?

Explanation / Answer

Generally the UCC will find a contract , unless the expression of acceptance is made conditions on the acceptance of the terms proposed .

If one party is a non merchant then they must expressly agree to the new term .A promise to do one is already legally bound to do is not sufficient consideration . Additional consideration is needed for modifiamodif of the velsicol and capitol .

Termination of contract by one party except on happening of an agreement event requires reasonable notification be received by dispensing with notification .

According to UCC : Suggest that reasonable notice is implied into contact because it allows to plan a substitute arrangement . They are need to sel inventory to recoup an investment .

Justification for non performance : generally concern excuses which arise not from overreaching or changed cn circumstances that have occurred or come to light since the original agreement was made .

A belief that is not in accordance with the fact an erroneous to the facts in existence at the time of execution on the contract  

A velsicol and capitol bear the risk of mistake when the risk is allocated to them by agreement of the work according the damage of the properties . They should be aware at the time of contract is made that they had only limited knowledge . The court on the ground that the circumstances to do so .

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