On February 1, Bing Surfboards (“Bing”) ordered 400 gallons of epoxy from Super Chemicals (“Super”) using its standard purchase order. Bing’s purchase order provided that delivery would be no later than February 20, but stated nothing about warranties, disclaimers, or remedies. Super responded with its standard acknowledgment, which purported to accept the order and confirmed that delivery would be no later than February 20. It also provided: (1) “Seller disclaims all warranties of merchantability and fitness.” (2) “In no event shall Seller be liable for consequential damages.” (3) “This acceptance is expressly made conditional on your assent to the terms of this acceptance.”
On February 15, Bing received the epoxy.
On February 20, Bing tested the epoxy by manufacturing 50 surfboards. The epoxy did not harden properly, leaving the surfboards useless.
On February 23, Bing emailed Super stating that the epoxy had failed to harden properly and that it was returning the remaining epoxy.
On February 25, not having heard from Super, Bing bought 400 gallons of epoxy from one of Super’s competitors, paying a substantially higher price for quick delivery, which was necessary to avoid a shutdown of Bing’s production line.
On February 26, Super informed Bing that it was shipping replacement epoxy to arrive the following day. The original epoxy had failed to harden because of manufacturing defects of which Super was unaware. Although the replacement epoxy was not defective, Bing rejected delivery and refused to pay.
Bing has sued Super for the increased price of epoxy it had to pay to Super’s competitor, and for loss due to 50 defective surfboards. Super has sued Bing for rejecting its replacement shipment and for not paying under the contract.
1. Is Bing likely to prevail in its suit? Discuss.
2. Is Super likely to prevail in its suit? Discuss.
3. To receive full credit for your response, I will expect to see 1 paragraph for each answer. Each paragraph must contain at a minimum 5 sentences. This means that there should be a minimum of 10 sentences in your response.
4. As you answer the two main questions, these foundational questions should help guide your responses:
Does the Contract need to be in writing? (Some contracts must be in writing to avoid the "Statute of Frauds" problem.)
What type of law applies? Is it goods? (If it is goods, then UCC applies. If it is not goods than the common law applies)
Were the elements of a contract met? Was there an Offer? Was there acceptance of the offer? Was there consideration? Was there performance?