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Highlight Updates The UCC’s Flexible Statutory Standards

The ability of courts to construe the UCC liberally to implement its policies is enhanced by the drafters’ deliberate use of flexible, imprecise language in critical sections of the Code, thereby allowing courts the flexibility to set different standards for consumer buyers and merchant buyers. Language such as “reasonable,” “under the circumstances,” “consistent,” “fitness for the ordinary purpose,” and “fitness for a particular purpose” was designed to avoid rigidity.397

This language permits the court to consider, among other things, the buyer’s and seller’s relative sophistication, the nature of the transaction and, to some extent, the equities of the situation.398 As comment 1 to section 1-103 explains:

The Uniform Commercial Code is drawn to provide flexibility so that, since it is intended to be a semi-permanent and infrequently-amended piece of legislation, it will provide its own machinery for expansion of commercial practices. It is intended to make it possible for the law embodied in the Uniform Commercial Code to be applied by the courts in the light of unforeseen and new circumstances and practices.

Thus, courts can view and have viewed “circumstances” to include the skill and experience of the buyer in order to give a consumer buyer more leeway than a merchant buyer in determining whether notice has been given within a “reasonable” time and whether the notice is otherwise sufficient.399

Some courts have interpreted “seller” narrowly for purposes of the consumer’s required notice to the seller, excluding the manufacturer and thus protecting consumer buyers who notified the retailer but sued the manufacturer without prior notice.400 At the same time, many courts have interpreted “seller” broadly to include the manufacturer in section 2-608, thus allowing consumer buyers to invoke the remedies of rejection and revocation of acceptance against manufacturers.401

Section 2-302, which permits a court to investigate whether any contract or clause is unconscionable under the facts of the case, is the paradigm imprecise Code provision allowing a flexible approach to consumer transactions. The unconscionability standard clearly is applied quite differently for consumer buyers than for merchant buyers.402

Other examples of flexible language that can be construed to benefit consumers are section 2-316(1), which provides that disclaimers must yield to express warranties when it is “unreasonable” to construe them consistently; section 2-316(2), which requires disclaimers of the implied warranty of merchantability to be “conspicuous”; and section 2-316(3)(a), which holds “as is” disclaimers ineffective when “circumstances indicate” that the buyer was unaware of the significance of the language.

This flexibility to set different standards, especially when coupled with the UCC policy of liberal construction to achieve the Code’s underlying purposes, gives consumer buyers excellent tools to deal with the statutory language. With these, and with the appropriate facts, a seemingly absolute Code provision can be rendered equivocal, or a general provision made controlling.


  • 397 {397} U.C.C. § 1-103 cmt. 1.

  • 398 {398} See, e.g., Simmons v. Am. Mut. Liab. Ins. Co., 433 F. Supp. 747, 750–751 (S.D. Ala. 1976) (interpreting Alabama’s version of section 2-725 broadly so that employee injured by allegedly defective goods was a consumer for statute of limitations purposes), aff’d, 560 F.2d 1022 (5th Cir. 1977) (table); Frontier Mobile Home Sales, Inc. v. Trigleth, 505 S.W.2d 516 (Ark. 1974) (giving consumer unusually long time to cancel sale of manufactured home because seller continued to promise to make repairs); Zoss v. Royal Chevrolet, Inc., 11 U.C.C. Rep. Serv. 527 (Ind. Super. Ct. 1972) (giving consumer long “reasonable time” under section 2-606 to cancel sale of car because minor problems continued to arise); Wolfe v. Ford Motor Co., 376 N.E.2d 143 (Mass. App. Ct. 1978) (interpreting “family or household” in section 2-318 to include truck buyer’s niece injured in accident, even though niece was not living at truck buyer’s house); Minsel v. El Rancho Mobile Home Ctr., Inc., 188 N.W.2d 9 (Mich. Ct. App. 1971) (citing “rule of reasonableness” in interpreting section 2-602 to allow consumer buyer of manufactured home to continue to live in it without waiving right to cancel sale, when seller refused to accept cancellation and return payments); Gen. Inv. Corp. v. Angelini, 278 A.2d 193 (N.J. 1971) (interpreting section 3-302 to allow consumer to assert claims and defenses against finance company purchaser of home improvement contract when contractor did not complete work on consumer’s home); Pavesi v. Ford Motor Co., 382 A.2d 954 (N.J. Super. Ct. Ch. Div. 1978) (citing “rule of reasonableness” in interpreting section 2-602 to allow consumer buyer to continue to use car).

  • 399 {399} See §§ 7.2.3, 7.2.5, 8.2, infra. See also U.C.C. §§ 2-607 cmt. 4, 2-608 cmt. 5.

  • 400 {400} See §§,, infra.

  • 401 {401} See § 6.2, infra.

  • 402 {402} See § 11.2, infra.