On February 1, Bing Surfboards (“Bing”) ordered 400 gallons of epoxy from Super
ID: 342678 • Letter: O
Question
On February 1, Bing Surfboards (“Bing”) ordered 400 gallons of epoxy from Super Chemicals (“Super”) using its standard purchase order. Bing’s purchase order provided that delivery would be no later than February 20, but stated nothing about warranties, disclaimers, or remedies. Super responded with its standard acknowledgment, which purported to accept the order and confirmed that delivery would be no later than February 20. It also provided: (1) “Seller disclaims all warranties of merchantability and fitness.” (2) “In no event shall Seller be liable for consequential damages.” (3) “This acceptance is expressly made conditional on your assent to the terms of this acceptance.”
On February 15, Bing received the epoxy.
On February 20, Bing tested the epoxy by manufacturing 50 surfboards. The epoxy did not harden properly, leaving the surfboards useless.
On February 23, Bing emailed Super stating that the epoxy had failed to harden properly and that it was returning the remaining epoxy.
On February 25, not having heard from Super, Bing bought 400 gallons of epoxy from one of Super’s competitors, paying a substantially higher price for quick delivery, which was necessary to avoid a shutdown of Bing’s production line.
On February 26, Super informed Bing that it was shipping replacement epoxy to arrive the following day. The original epoxy had failed to harden because of manufacturing defects of which Super was unaware. Although the replacement epoxy was not defective, Bing rejected delivery and refused to pay.
Bing has sued Super for the increased price of epoxy it had to pay to Super’s competitor, and for loss due to 50 defective surfboards. Super has sued Bing for rejecting its replacement shipment and for not paying under the contract.
1. Is Bing likely to prevail in its suit? Discuss.
2. Is Super likely to prevail in its suit? Discuss.
3. To receive full credit for your response, I will expect to see 1 paragraph for each answer. Each paragraph must contain at a minimum 5 sentences. This means that there should be a minimum of 10 sentences in your response.
4. As you answer the two main questions, these foundational questions should help guide your responses:
Does the Contract need to be in writing? (Some contracts must be in writing to avoid the "Statute of Frauds" problem.)
What type of law applies? Is it goods? (If it is goods, then UCC applies. If it is not goods than the common law applies)
Were the elements of a contract met? Was there an Offer? Was there acceptance of the offer? Was there consideration? Was there performance?
Explanation / Answer
The case does not mention if Bing had signed on the offer that Super had provided (with three points waving the warranty). Hence assuming that Bing received the order without signing the off on an acknowledgement.
1. Bing is likely to prevail in the suit. The reason behind it is that Bing's purchase order may not have mentioned warranty of any kind, but purchase of goods usually comes with implied warranty. The implied warranty should have behaved in usual manner and hardened. Since that did not happen the implied warranty has been violated. Implied warranties are applicable to goods. Epoxy being a tangible product puts it in the category of uniform commercial code (UCC)
2. Super will likely not prevail in the suit. The reason behind this is that, while Super had provided the acknowledgement of the order, it was more of an offer to remove the warranties. Bing did not sign and the offer did not get converted into a contract. In addition, there is an act called Magnuson-Moss warranty act. This states that implied warranties cannot be disclaimed. As a result, Super will likely not win the suit against Bing.
Related Questions
drjack9650@gmail.com
Navigate
Integrity-first tutoring: explanations and feedback only — we do not complete graded work. Learn more.