U.C.C. section 2-607(3)(a) requires a buyer to give a seller notice of breach within a reasonable time after the buyer discovers or should have discovered the breach. Failure to give the specified notice bars a buyer from any remedy for breach. This harsh rule provides a breaching seller with a complete defense to Article 2 claims; consequently, lawyers representing sellers are well-advised to raise this defense whenever possible, and those representing buyers should give timely notice of breach.

 

The importance of the buyer’s status in defining the standard of compliance necessary to satisfy the notice requirements. With regard to the timeliness of notice, the official comments following section 2-607 impose upon merchant buyers a standard of commercial good faith that is a more exacting measure than that required of a retail consumer. However, with regard to the content of the notice, there is no mention of a different standard for merchants. Official comment 4 states: “The content of the notification need merely be sufficient to let the seller know that the transaction is still troublesome and must be watched.” But further reading of this comment reveals another, somewhat stricter, standard which requires that the content of the notice “be such as informs the seller that the transaction is claimed to involve a breach.” Consistent with the policy of promoting commercial good faith in transactions between merchants, some courts have read into comment 4 and section 2-607(3)(a) a distinction in the applicability of the two content standards based on the status of the parties.

 

This material was excerpted from an Expert Commentary by Professor David Frisch. Subscribers to lexis.com may purchase the entire Expert Commentary.