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Whether the seller’s actual knowledge of defects in the goods makes notice unnecessary is a difficult question.

Although some courts disagree,²⁸ many hold that notice to indirect sellers is unnecessary, either stating this principle as a general rule²⁹ or as the rule when the buyer has notified the retail seller.³⁰ This determination may depend on whether the dealer is the manufacturer’s agent and on the interpretation of any contractual language between the consumer and the dealer or manufacturer.

When the dealer assigns a credit-sale agreement to a third party, notice to the original seller should suffice because the assignee stands in the seller’s shoes and the purpose of the notice requirement is to alert a responsible party and not to erect technical barriers to relief for good faith consumers.³⁶

Section 2-607(3)(a) only requires the buyer, not other injured parties, to give notice of breach to the seller. Comment 5 to that section, however, implies that nonbuyers (such as subsequent purchasers of the goods from the buyer or a relative or friend of the buyer for whom the goods were bought) may also be required to give notice.

Some courts have recognized an exception to the notice requirement when giving notice would be futile.

A few states have non-uniform provisions that eliminate the notice requirement altogether in personal injury cases.⁴³ A non-uniform provision of the Massachusetts UCC provides that, when recovery is sought under UCC § 2-318, failure to give notice is no bar unless the defendant shows prejudice.⁴⁴

Some courts have allowed a pleading to serve as notice of breach.⁴⁵ Some of these cases arise in the context of personal injury,⁴⁶ however, and there is substantial authority that a pleading can serve as notice only in personal injury cases or not at all.⁴⁷

Section 2-607(3)(a) requires the buyer to notify the seller of breach “within a reasonable time after he discovers or should have discovered any breach.” Whether notice is given “within a reasonable time” can be determined only by examining the particular facts and circumstances of each case and the policies behind the notice requirement.⁵⁰ It is a question of fact for the jury⁵¹ unless reasonable minds cannot differ, in which case the court may decide the issue as a question of law.

Comment 4 to section 2-607 makes it clear that commercial buyers may be held to a significantly higher standard than consumer buyers:

A few decisions hold that the buyer must give a second notice of breach after the seller has attempted a repair in response to the original notice.⁶⁸ For example, in one case,⁶⁹ buyers of carpet complained shortly after installation that the carpets were “pilling.” The seller visited their home and advised them that pilling was normal for new carpets and would cease after several cleanings.

The contract may specify a time by which the buyer must notify the seller of breach. The general Code principle of freedom of contract⁷⁵ allows the parties to agree to what is a reasonable time. The contract may provide that the buyer must notify the seller within a certain number of days after delivery or after discovery of problems.⁷⁶

The notice requirement is intended not to be burdensome.⁸² The notice can be anything that alerts the seller that the transaction is troublesome.⁸³ Comment 4 to section 2-607 explains the minimal requirements for notice of breach:

The notice need not be a formal written notification.⁹⁹ It can be a notation on the delivery receipt¹⁰⁰ or a bit of paper.¹⁰¹ It can be given orally, either in person or by telephone.¹⁰² Email is likely to be considered sufficient.¹⁰³ Even conduct such as returning the product for repairs constitutes proper notice.¹⁰⁴

Some warranties specify the manner in which the buyer must give notice of breach.¹⁰⁸ Such a clause should be construed against the party drafting it,¹⁰⁹ and will not be held to be the exclusive means of giving notice unless that is explicitly stated.¹¹⁰ If a seller accepts notice that is not given in the specified manner, it may be estopped from denying the adequacy of the notice.¹¹¹ A consumer in thi

The sufficiency of the buyer’s notice is a question of fact for the jury.¹¹⁶ Although a written notice identifying problems is not necessary, it is useful evidence. Because the buyer must prove notice was given,¹¹⁷ a written notice of breach is admissible evidence.

Section 2-601 of the UCC sets out the buyer’s rights when goods or the seller’s conduct “fail in any respect to conform” to the contract. By providing that a warranty is violated if the goods or the seller’s conduct fail to conform “in any respect,” section 2-601 in theory continues the perfect tender rule of common law contracts. This rule makes any deviation from the warranty standard a violation of the seller’s obligations¹²⁰ and requires the seller to take back the nonconforming goods.

The UCC’s remedies are available to the buyer when goods or the seller’s conduct “fail in any respect to conform” to the contract.¹³⁰ According to section 2-106(2), goods conform to the contract when they are “in accordance with the obligations under the contract.” The buyer’s rights, then, depend upon the nature of the obligation undertaken by the seller or imposed by law on the seller.

For purpose of analysis, this chapter categorizes warranties as future performance or present characteristic warranties. Future performance warranties promise a standard of future performance for goods. They usually offer the buyer better protection than present characteristic warranties, which promise that the goods have a characteristic or condition at delivery.¹³²

Future performance and present characteristic warranties may be either general or specific. “This manufactured home is well-insulated” and “this manufactured home has nine inches of fiberglass insulation in the ceiling” are both present characteristic warranties because they promise that the manufactured home will have certain characteristics at the time of delivery, but they do not promise any energy performance after delivery. Of the two warranties, the latter, promising a particular, measurable amount of insulation, is more specific than the general “well-insulated.”

Sometimes it is fairly straightforward to prove a nonconformity with a present characteristic warranty created by affirmation of fact.¹³⁷ For example, a warranty that the odometer is correct is violated if the odometer is not correct.¹³⁸ A manufactured home that does not meet government standards as promised or a car that fails to pass a state inspection-at-sale law, after being warranted as complying with the law, are other examples.¹³⁹

As the representation becomes more general, the promised standard is less clear. “Truckload of firewood” is a more general representation than “128 cubic feet of oak, 18 inch lengths, split, seasoned for one year.” The former representation raises questions as to how much wood is in a truckload, what kind of wood is firewood, how long and thick the pieces can be, and whether green wood can be firewood.

Pictorial representations and models and samples may present special problems in determining warranty standards. Pictures can create express warranties¹⁵³ that the product conforms to the picture. Generally, the standard created by the picture is that the product will measure up to the picture in all respects, at least regarding observable qualities.¹⁵⁴

Present characteristic warranties promise that the goods contain a characteristic or condition at the time of delivery,¹⁵⁹ unless otherwise specified,¹⁶⁰ even if not discovered until later. They do not promise that the goods will retain that characteristic or condition in the future or perform in any way. This is true whether the standard is specific or general. “Good condition” promises only that the car is in good condition at delivery.

A future performance warranty relates to the future operation of the goods or future conduct of the seller, rather than to the operation of the goods on the date of delivery. The promise is that the goods not only have a characteristic or condition at delivery, but that the characteristic or condition will persist in the future.

It is easy to prove breach of a promise of performance. The product or seller either performed as promised or did not. The nonconformity is readily discoverable and provable by eyewitness evidence such as “my tire blew out,” “I only got 15 miles per gallon,” or “the seller never made the repairs.”¹⁷²