Jakowski v. Carole Chevrolet, Inc.

433 A.2d 841 (1981)

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Nature of the Case

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Facts

P entered into a contract of sale with D for the purchase of a new 1980 Chevrolet Camaro. The parties agreed that the car would be undercoated and that its finish would have a polymer coating. It is undisputed that prior to delivery the seller agreed to deliver the car with the coatings applied. It is also undisputed that the car in question was delivered to P without the required coatings on May 19, 1980. The next day, D contacted the buyer and informed him that the car delivered to him lacked the coatings in question and D instructed him to return the car so that the coatings could be applied. P returned the auto for application of the coatings. The car was stolen from D's premises, and it was never recovered. D has refused to either provide a replacement auto or to refund the purchase price. P is still on the hook for the loan, provided through GMAC, for the purchase of the car. D argues that the risk of loss passed to P upon his receipt of the auto under UCC 2-509(3). P relies upon UCC 2-510(1) which provides: Where a tender or delivery of goods so fails to conform to the contract as to give a right of rejection the risk of their loss remains on the seller until cure or acceptance. P moved for summary judgment.