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Palmucci v. Brunswick Corp.

May 21, 1998

RUSSELL PALMUCCI, PLAINTIFF-APPELLANT,
v.
BRUNSWICK CORPORATION D/B/A MERCRUISER AND SANBORN MARINE CENTER, DEFENDANTS-RESPONDENTS.



Before Judges Stern, Kleiner and Kimmelman.

The opinion of the court was delivered by: Kleiner, J.A.D.

[9]    Argued March 24, 1998

On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

In this appeal, we are required to compare two separate provisions of the Uniform Commercial Code: N.J.S.A. 12A:2-608 and N.J.S.A. 12A:2-719.

N.J.S.A. 12A:2-608 provides:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it

(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or

(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.

N.J.S.A. 12A:2-719 provides:

(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages,

(a) the agreement may provide for remedies in addition to or in substitution for those provided in this Chapter and may limit or alter the measure of damages recoverable under this Chapter, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and

(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be ...


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