Will a Connecticut court enforce a repair-or-replace or other exclusive remedy clause?
Between commercial parties, generally yes. Commercial contracting parties have considerable freedom to determine the remedial rights that will ensue upon breach, authority expressly conferred on buyers and sellers of goods by § 42a-2-719, and absent some cogent reason such as mistake or unconscionability there is no reason a court should not enforce the bargain the parties have made (Mack Financial Corp. v. Crossley). But the Code recognizes that it is the very essence of a sales contract that at least minimum adequate remedies be available: in Conte the limited repair remedy failed of its essential purpose because after numerous attempts to repair the car still did not operate as a new automobile should, and the jury could reasonably conclude the buyer's revocation of acceptance was timely and justifiable, so that 'The plaintiff was, therefore, entitled to recover the amount of the purchase price which he had already paid': a basic remedy for justifiable revocation that 'was not effectively limited by the warranty provision that the buyer was only entitled to the repair and replacement of defective parts'. Exclusivity must be explicit: where a limited remedy is designed to be exclusive, 'it must be clearly expressed' (Gaynor Electric Co. v. Hollander, Conn. App. 1993, reading § 2-719 (1) (b)). Enforcement binds the drafter as well: in Mack the contract was enforced according to its terms against the commercial seller whose own drafting had imposed the burden, and the judgment was set aside and remanded with direction to render judgment for the defendants. And revocation reaches only the seller ('The statute allows revocation only against the person who sells or contracts to sell goods'), so in Conte the manufacturer, Ford, was entitled to judgment although the selling dealer was not.
The trap
A repair-or-replace remedy can fail: in Conte (a consumer's new car) the limited remedy had failed of its essential purpose 'because even after numerous attempts to repair, the automobile still did not operate as a new automobile should, free from defects', and the jury could reasonably conclude that the revocation was timely and justifiable. Revocation of acceptance is not a free-standing consequence of a failed repair remedy: Conte sets out the four conditions § 42a-2-608 imposes on a buyer who seeks to justify it, including a nonconformity substantially impairing the value to the buyer and revocation within a reasonable time after the nonconformity was or should have been discovered. Conte does not say how many attempts or how much time is enough. The enforcement principle in Mack is also bounded by its own exceptions, mistake and unconscionability. Title 42a is not among the statutes we publish; the operative text of § 42a-2-719 (1) and (2) reaches us only as Connecticut opinions quote it (Mack, Conte, Web Press), and subsection (3), on consequential-damages exclusions, is not stated here.
10 authorities
The words that state the rule
Commercial contracting parties have considerable freedom to determine the remedial rights that will ensue upon breach. Such authority is expressly conferred upon buyers and sellers of goods in article 2 of the Uniform Commercial Code, General Statutes § 42a-2-719. 5 Absent some cogent reason such as mistake or unconscionability, there is no reason why a court should not enforce the bargain that the parties have made. Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598 , 424 A.2d 277 (1979). In this case, the parties’ bargain imposes upon the seller or its assignee the burden of complying fully with consumer procedures that would otherwise not be mandatory in this commercial context. Particularly when it is the commercial seller whose drafting has imposed this burden upon itself, we are of the view that the contract should be enforced according to its terms.
The words that state the rule
The code provides that it shall be liberally construed; § 42a-l-102; and recognizes that it is the very essence of a sales contract that at least minimum adequate remedies be available. § 42a-2-719; Uniform Commercial Code § 2-719, comment 1. In this case, the limited remedy of the warranty had failed of its essential purpose because even after numerous attempts to repair, the automobile still did not operate as a new automobile should, free from defects. See Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir.). The code provides that “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.” § 42a-2-719 (2).
The words that state the rule
Section 42a-2-608 of the General Statutes sets up the following conditions for the buyer who seeks to justify revocation of acceptance: (1) a nonconformity which substantially impairs the value to the buyer; (2) acceptance (a) with discovery of the defect, if the acceptance is on the reasonable assumption that the nonconformity will be cured, or (b) without discovery of the defect, when the acceptance is reasonably induced by the difficulty of the discovery or the seller’s assurances; (3) revocation within a reasonable time after a nonconformity was discovered or should have been discovered; and (4) revocation before a substantive change occurs in the condition of the goods not caused by their own defects.
The words that state the rule
The jury could have reasonably concluded that the revocation was timely and justifiable. The plaintiff was, therefore, entitled to recover the amount of the purchase price which he had already paid. § 42a-2-711. This basic remedy for justifiable revocation was not effectively limited by the warranty provision that the buyer was only entitled to the repair and replacement of defective parts.
The words that state the rule
There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.
The words that state the rule
General Statutes § 42a-2-719 provides in relevant part: “(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article . . . .”
The words that state the rule
The statute allows revocation only against the person who sells or contracts to sell goods. Dwan was not the agent of Ford insofar as the sale of the automobile was concerned. To be entitled to the remedy of revocation, there must be a buyer-seller relationship, and that relationship was absent in this case.
The words that state the rule
There is error on the appeal of the defendant Ford, the judgment as to this defendant only is set aside and the case is remanded with direction to render judgment in favor of the defendant Ford Motor Company.
- case203 Conn. 342Web Press Services Corp. v. New London Motors, Inc.Conn.decided 1987read it at the source ↗
The words that state the rule
Under General Statutes § 42a-2-719 (2), a party may avail itself of remedies provided by the code “[w]here circumstances cause an *350 exclusive or limited remedy to fail of its essential purpose . . . .” See Conte v. Dwan Lincoln-Mercury, Inc., supra, 123.
The words that state the rule
As the plaintiff correctly points out, the UCC, in § 2-719 (1) (General Statutes § 42a-2-719 [1]) 3 permits *872 parties to limit a buyer’s remedy for breach. Under § 2-719 (1) (b), however, if such a limited remedy is designed to be exclusive, such as the plaintiff’s claim in this case, it must be clearly expressed.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.