Updated 2013−14 Wis. Stats. Published and certified under s. 35.18. July 7, 2015.
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` 402.306
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`UCC Ċ SALES
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`Updated 13−14 Wis. Stats.
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`6
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`requirements as may occur in good faith, except that no quantity
`unreasonably disproportionate to any stated estimate or in the
`absence of a stated estimate to any normal or otherwise compara-
`ble prior output or requirements may be tendered or demanded.
`(2) A lawful agreement by either the seller or the buyer for
`exclusive dealing in the kind of goods concerned imposes unless
`otherwise agreed an obligation by the seller to use best efforts to
`supply the goods and by the buyer to use best efforts to promote
`their sale.
`A “pay as used” proposal to purchase inventory was analogous to a “requirements
`contract.” Lambert Corp. v. Evans, 575 F.2d 132 (1978).
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`402.307 Delivery in single lot or several lots. Unless
`otherwise agreed all goods called for by a contract for sale must
`be tendered in a single delivery and payment is due only on such
`tender but where the circumstances give either party the right to
`make or demand delivery in lots the price if it can be apportioned
`may be demanded for each lot.
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`402.308 Absence of specified place for delivery. Unless
`otherwise agreed:
`(1) The place for delivery of goods is the seller’s place of busi-
`ness or if the seller has none the seller’s residence; but
`(2) In a contract for sale of identified goods which to the
`knowledge of the parties at the time of contracting are in some
`other place, that place is the place for their delivery; and
`(3) Documents of title may be delivered through customary
`banking channels.
`History: 1991 a. 316.
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`402.309 Absence of specific time provisions; notice of
`termination. (1) The time for shipment or delivery or any other
`action under a contract if not provided in this chapter or agreed
`upon shall be a reasonable time.
`(2) Where the contract provides for successive performances
`but is indefinite in duration it is valid for a reasonable time but
`unless otherwise agreed may be terminated at any time by either
`party.
`(3) Termination of a contract by one party except on the hap-
`pening of an agreed event requires that reasonable notification be
`received by the other party and an agreement dispensing with noti-
`fication is invalid if its operation would be unconscionable.
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`402.310 Open time for payment or running of credit;
`authority to ship under reservation. Unless otherwise
`agreed:
`(1) Payment is due at the time and place at which the buyer is
`to receive the goods even though the place of shipment is the place
`of delivery; and
`(2) If the seller is authorized to send the goods the seller may
`ship them under reservation, and may tender the documents of
`title, but the buyer may inspect the goods after their arrival before
`payment is due unless such inspection is inconsistent with the
`terms of the contract (s. 402.513); and
`(3) If delivery is authorized and made by way of documents
`of title otherwise than by sub. (2) then payment is due regardless
`of where the goods are to be received at the time and place at which
`the buyer is to receive the documents; or at the time the buyer is
`to receive delivery of the electronic documents and at the seller’s
`place of business or, if none, the seller’s residence; and
`(4) Where the seller is required or authorized to ship the goods
`on credit the credit period runs from the time of shipment but post-
`dating the invoice or delaying its dispatch will correspondingly
`delay the starting of the credit period.
`History: 1991 a. 316; 2009 a. 322.
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`402.311 Options and cooperation respecting perfor-
`mance. (1) An agreement for sale which is otherwise suffi-
`ciently definite (s. 402.204 (3)) to be a contract is not made invalid
`by the fact that it leaves particulars of performance to be specified
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`by one of the parties. Any such specification must be made in
`good faith and within limits set by commercial reasonableness.
`(2) Unless otherwise agreed specifications relating to assort-
`ment of the goods are at the buyer’s option and except as otherwise
`provided in s. 402.319 (1) (c) and (3) specifications or arrange-
`ments relating to shipment are at the seller’s option.
`(3) Where such specification would materially affect the other
`party’s performance but is not seasonably made or where one
`party’s cooperation is necessary to the agreed performance of the
`other but is not seasonably forthcoming, the other party in addition
`to all other remedies:
`(a) Is excused for any resulting delay in his or her own perfor-
`mance; and
`(b) May also either proceed to perform in any reasonable man-
`ner or after the time for a material part of his or her own perfor-
`mance treat the failure to specify or to cooperate as a breach by
`failure to deliver or accept the goods.
`History: 1991 a. 316.
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`402.312 Warranty of title and against infringements;
`buyer’s obligation against infringement. (1) Subject to
`sub. (2) there is in a contract for sale a warranty by the seller that:
`(a) The title conveyed shall be good, and its transfer rightful;
`and
`(b) The goods shall be delivered free from any security interest
`or other lien or encumbrance of which the buyer at the time of con-
`tracting has no knowledge.
`(2) A warranty under sub. (1) will be excluded or modified
`only by specific language or by circumstances which give the
`buyer reason to know that the person selling does not claim title
`in himself or herself or that the person selling is purporting to sell
`only such right or title as the person selling or a 3rd person may
`have.
`(3) Unless otherwise agreed a seller who is a merchant regu-
`larly dealing in goods of the kind warrants that the goods shall be
`delivered free of the rightful claim of any 3rd person by way of
`infringement or the like but a buyer who furnishes specifications
`to the seller must hold the seller harmless against any such claim
`which arises out of compliance with the specifications.
`History: 1971 c. 40; 1991 a. 316; 2005 a. 253.
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`402.313 Express warranties by affirmation, promise,
`description, sample. (1) Express warranties by the seller are
`created as follows:
`(a) Any affirmation of fact or promise made by the seller to the
`buyer which relates to the goods and becomes part of the basis of
`the bargain creates an express warranty that the goods shall con-
`form to the affirmation or promise.
`(b) Any description of the goods which is made part of the
`basis of the bargain creates an express warranty that the goods
`shall conform to the description.
`(c) Any sample or model which is made part of the basis of the
`bargain creates an express warranty that the whole of the goods
`shall conform to the sample or model.
`(2) It is not necessary to the creation of an express warranty
`that the seller use formal words such as “warrant” or “guarantee”
`or that the seller have a specific intention to make a warranty, but
`an affirmation merely of the value of the goods or a statement pur-
`porting to be merely the seller’s opinion or commendation of the
`goods does not create a warranty.
`History: 1991 a. 316.
`Express warranties are discussed. Ewers v. Eisenzopf, 88 Wis. 2d 482, 276 N.W.2d
`802 (1979).
`Strict liability of the bailor, lessor and licensor. 57 MLR 111.
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`402.314 Implied warranty: merchantability; usage of
`trade. (1) Unless excluded or modified (s. 402.316), a warranty
`that the goods shall be merchantable is implied in a contract for
`their sale if the seller is a merchant with respect to goods of that
`kind. Under this section the serving for value of food or drink to
`be consumed either on the premises or elsewhere is a sale.
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`2013−14 Wisconsin Statutes updated through 2015 Wis. Act 54 and all Supreme Court Orders entered before July 7, 2015. Pub-
`lished and certified under s. 35.18. Changes effective after July 7, 2015 are designated by NOTES. (Published 7−7−15)
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`Caterpillar v. ESCO IPR2015-01032
`ESCO Exhibit 2031 Page 1