Actual delivery, not mere present ability to fulfill all the conditions imposed on a tendering party, is necessary to constitute "tender" under this section. Crowder v. Aurora Co-op Elev. Co., 223 Neb. 704, 393 N.W.2d 250 (1986).
"Tender of delivery" requires the seller to put and hold conforming goods at buyer's disposition. Goosic Constr. Co. v. City Nat. Bank of Crete, 196 Neb. 86, 241 N.W.2d 521 (1976).
Purchase money priority is exception to basic rule of priority to first filed financing statement and should be applied only in strict compliance with all limitations in Uniform Commercial Code. North Platte State Bank v. Production Credit Assn., 189 Neb. 45, 200 N.W.2d 1 (1972).
Prior Uniform Statutory Provision: See sections 11, 19, 20, 43(3) and (4), 46, and 51, Uniform Sales Act.
Changes: The general policy of the above sections is continued and supplemented but subsection (3) changes the rule of prior section 19(5) as to what constitutes a "destination" contract and subsection (4) incorporates a minor correction as to tender of delivery of goods in the possession of a bailee.
Purposes of Changes:
1. The major general rules governing the manner of proper or due tender of delivery are gathered in this section. The term "tender" is used in this article in two different senses. In one sense it refers to "due tender" which contemplates an offer coupled with a present ability to fulfill all the conditions resting on the tendering party and must be followed by actual performance if the other party shows himself or herself ready to proceed. Unless the context unmistakably indicates otherwise this is the meaning of "tender" in this article and the occasional addition of the word "due" is only for clarity and emphasis. At other times it is used to refer to an offer of goods or documents under a contract as if in fulfillment of its conditions even though there is a defect when measured against the contract obligation. Used in either sense, however, "tender" connotes such performance by the tendering party as puts the other party in default if he or she fails to proceed in some manner. These concepts of tender would apply to tender of either tangible or electronic documents of title.
2. The seller's general duty to tender and deliver is laid down in section 2-301 and more particularly in section 2-507. The seller's right to a receipt if he or she demands one and receipts are customary is governed by section 1-205. Subsection (1) of the present section proceeds to set forth two primary requirements of tender: First, that the seller "put and hold conforming goods at the buyer's disposition" and, second, that he or she "give the buyer any notice reasonably necessary to enable him or her to take delivery".
In cases in which payment is due and demanded upon delivery the "buyer's disposition" is qualified by the seller's right to retain control of the goods until payment by the provision of this article on delivery on condition. However, where the seller is demanding payment on delivery he or she must first allow the buyer to inspect the goods in order to avoid impairing his or her tender unless the contract for sale is on C.I.F., C.O.D., cash against documents, or similar terms negating the privilege of inspection before payment.
In the case of contracts involving documents the seller can "put and hold conforming goods at the buyer's disposition" under subsection (1) by tendering documents which give the buyer complete control of the goods under the provisions of article 7 on due negotiation.
3. Under paragraph (a) of subsection (1) usage of the trade and the circumstances of the particular case determine what is a reasonable hour for tender and what constitutes a reasonable period of holding the goods available.
4. The buyer must furnish reasonable facilities for the receipt of the goods tendered by the seller under subsection (1), paragraph (b). This obligation of the buyer is no part of the seller's tender.
5. For the purposes of subsections (2) and (3) there is omitted from this article the rule under prior uniform legislation that a term requiring the seller to pay the freight or cost of transportation to the buyer is equivalent to an agreement by the seller to deliver to the buyer or at an agreed destination. This omission is with the specific intention of negating the rule, for under this article the "shipment" contract is regarded as the normal one and the "destination" contract as the variant type. The seller is not obligated to deliver at a named destination and bear the concurrent risk of loss until arrival, unless he or she has specifically agreed so to deliver or the commercial understanding of the terms used by the parties contemplates such delivery.
6. Paragraph (a) of subsection (4) continues the rule of the prior uniform legislation as to acknowledgement by the bailee. Paragraph (b) of subsection (4) adopts the rule that between the buyer and the seller the risk of loss remains on the seller during a period reasonable for securing acknowledgement of the transfer from the bailee, while as against all other parties the buyer's rights are fixed as of the time the bailee receives notice of the transfer.
7. Under subsection (5) documents are never "required" except where there is an express contract term or it is plainly implicit in the peculiar circumstances of the case or in a usage of trade. Documents may, of course, be "authorized" although not required, but such cases are not within the scope of this subsection. When documents are required, there are three main requirements of this subsection: (1) "All": Each required document is essential to a proper tender; (2) "Such": The documents must be the ones actually required by the contract in terms of source and substance; (3) "Correct form": All documents must be in correct form. These requirements apply to both tangible and electronic documents of title. When tender is made through customary banking channels, a draft may accompany or be associated with a document of title. The language has been broadened to allow for drafts to be associated with an electronic document of title. Compare section 2-104(2) definition of financing agency.
When a prescribed document cannot be procured, a question of fact arises under the provision of this article on substituted performance as to whether the agreed manner of delivery is actually commercially impracticable and whether the substitute is commercially reasonable.
Point 2: Sections 1-205, 2-301, 2-310, 2-507, and 2-513 and article 7.
Point 5: Sections 2-308, 2-310, and 2-509.
Point 7: Section 2-614(1).
Specific matters involving tender are covered in many additional sections of this article. See sections 1-205, 2-301, 2-306 to 2-319, 2-321(3), 2-504, 2-507(1), 2-511(1), 2-513, 2-612, and 2-614.
Definitional Cross References:
"Agreement". Section 1-201.
"Bill of lading". Section 1-201.
"Buyer". Section 2-103.
"Conforming". Section 2-106.
"Contract". Section 1-201.
"Delivery". Section 1-201.
"Dishonor". Section 3-502.
"Document of title". Section 1-201.
"Draft". Section 3-104.
"Goods". Section 2-105.
"Notification". Section 1-201.
"Reasonable time". Section 1-204.
"Receipt" of goods. Section 2-103.
"Rights". Section 1-201.
"Seasonably". Section 1-204.
"Seller". Section 2-103.
"Written". Section 1-201.