Nebraska Uniform Commercial Code 2-607

UCC 2-607

2-607.

Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over.

(1) The buyer must pay at the contract rate for any goods accepted.

(2) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a nonconformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by this article for nonconformity.

(3) Where a tender has been accepted

(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and

(b) if the claim is one for infringement or the like (subsection (3) of section 2-312) and the buyer is sued as a result of such a breach he must so notify the seller within a reasonable time after he receives notice of the litigation or be barred from any remedy over for liability established by the litigation.

(4) The burden is on the buyer to establish any breach with respect to the goods accepted.

(5) Where the buyer is sued for breach of a warranty or other obligation for which his seller is answerable over

(a) he may give his seller written notice of the litigation. If the notice states that the seller may come in and defend and that if the seller does not do so he will be bound in any action against him by his buyer by any determination of fact common to the two litigations, then unless the seller after seasonable receipt of the notice does come in and defend he is so bound.

(b) if the claim is one for infringement or the like (subsection (3) of section 2-312) the original seller may demand in writing that his buyer turn over to him control of the litigation including settlement or else be barred from any remedy over and if he also agrees to bear all expense and to satisfy any adverse judgment, then unless the buyer after seasonable receipt of the demand does turn over control the buyer is so barred.

(6) The provisions of subsections (3), (4) and (5) apply to any obligation of a buyer to hold the seller harmless against infringement or the like (subsection (3) of section 2-312).

Source

  • Laws 1963, c. 544, Art. II, § 2-607, p. 1748.

Annotations

  • Pursuant to subsection (3)(a) of this section, whether the notice given is satisfactory and whether it is given within a reasonable time are generally questions of fact to be measured by all the circumstances of the case. Fitl v. Strek, 269 Neb. 51, 690 N.W.2d 605 (2005).

  • Pursuant to subsection (4) of this section, the burden is on the buyer to show a breach with respect to the goods accepted. Fitl v. Strek, 269 Neb. 51, 690 N.W.2d 605 (2005).

  • The notice requirement set forth in subsection (3)(a) of this section serves three purposes. It provides the seller with an opportunity to correct any defect, to prepare for negotiation and litigation, and to protect itself against stale claims asserted after it is too late for the seller to investigate them. Fitl v. Strek, 269 Neb. 51, 690 N.W.2d 605 (2005).

  • In regard to the notice contemplated by the section, in the case of the principal-agency relationship, the apparent authority of an agent may exist beyond termination of the principal-agency relationship when notice of the termination has not been given; this is particularly the case if the principal affirmatively, intentionally, or by lack of ordinary care causes third persons to act upon the apparent agency. Moore v. Puget Sound Plywood, 214 Neb. 14, 332 N.W.2d 212 (1983).

  • This section, including its notice provisions, does not apply to sales of real estate. Fink v. Denbeck, 206 Neb. 462, 293 N.W.2d 398 (1980).

  • Buyer of defective machine failed to make effective rejection, and by his actions accepted nonconforming goods. Alliance Tractor & Implement Co. v. Lukens Tool & Die Co., 199 Neb. 489, 260 N.W.2d 193 (1977).

  • Purchaser who relies on breach of warranty must plead that he gave timely notice of the breach. Timmerman v. Hertz, 195 Neb. 237, 238 N.W.2d 220 (1976).

  • Discussed in opinion holding Uniform Commercial Code applicable rather than strict tort liability in case involving damage to all property. Hawkins Constr. Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643 (1973).

  • Rejection of a proffered breach of warranty instruction in personal injury case, where rejection was based on view that warranty action was barred by failure to meet notice requirement, held not prejudicial, without reaching notice issue, because negligence and strict liability instructions sufficiently placed same factual issues before jury. Brassette v. Burlington Northern Inc., 687 F.2d 153 (8th Cir. 1982).

  • City, by accepting sewage processing plant when it denied access to the plant to personnel of the contractor, which was also to operate the plant, became obligated to pay contract rate, less any damages allotted to it. Omaha Pollution Control Corp. v. Carver-Greenfield Corp., 413 F.Supp. 1069 (D. Neb. 1976).