Also known as: nonconforming tender · non conforming tender
Written by attorneys · grounded in primary & secondary sources — see below
A delivery of goods that deviates from the contract requirements in any respect. The deviation triggers the buyer's right to reject the tender under the perfect tender rule while preserving the seller's opportunity to cure when statutory conditions are met.
SteelCo delivered structural beams to Build-Rite on June 20 for a June 30 deadline, but some beams fell below the specified grade. Build-Rite rejected the shipment the same day. SteelCo immediately notified Build-Rite of its plan to replace the beams with conforming ones by June 28 and made that delivery on schedule.
T.W. Oil delivered fuel oil to Consolidated Edison after the contract date with a sulfur content slightly above the agreed limit. Consolidated Edison rejected the shipment. T.W. Oil had reasonable grounds to believe the tender would be acceptable with a price allowance and seasonably notified the buyer of its intent to substitute a conforming load within a further reasonable time.
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The seller may cure if the time for performance has not expired and the seller seasonably notifies the buyer of intent to cure before making a conforming delivery within the contract time. When the seller had reasonable grounds to believe the initial tender would be acceptable with or without allowance, the seller may also obtain a further reasonable time beyond the contract date upon seasonable notice.
Supporting sources
No. Rejection of a non-conforming tender does not end the contract when time remains for performance. The seller retains the statutory right to cure by giving seasonable notice and tendering conforming goods within the contract period or, when reasonable grounds exist, within a further reasonable time.
Supporting sources
The buyer must reject the tender and the seller must fail to give seasonable notice or fail to make a conforming tender within the available time. Mere rejection alone does not extinguish the cure right when statutory conditions are satisfied.
Supporting sources
…to cure a defective performance. Under this provision, even where the contract period has expired and the buyer has rejected a nonconforming tender or has revoked an acceptance, the seller may “substitute a conforming tender” if he had “reasonable grounds to believe” that the nonconforming tender would be accepted and “if he seasonably…