Ark. Code Ann. § 4-2-714 (2020)

Research References

Ark. L. Rev.

Unconscionable Contracts: A New Approach for the Arkansas Lawyer, 21 Ark. L. Rev. 427.

Voucher to Products Liability: The Mechanics of U.C.C. § 2-607(5)(a), 29 Ark. L. Rev. 486.

Notes, Ozark Kenworth, Inc. v. Neidecker: A Buyer's Continued Use of Goods After Revocation of Acceptance, 38 Ark. L. Rev. 857.

U. Ark. Little Rock L.J.

White, The Decline of the Contract Market Damage Model, 11 U. Ark. Little Rock L.J. 1.

Note, Arkansas's New Motor Vehicle Quality Assurance Act — A Branch of Hope For Lemon Owners, 16 U. Ark. Little Rock L.J. 493.

Case Notes

In General.

The buyer's options of revocation of acceptance under § 4-2-711 and recovery of damages for breach of warranty under this section are two separate and distinct strands of remedies under the UCC (subtitle 1 of this title), and the buyer may pursue either remedy or both since they offer separate forms of relief. Ford Motor Credit Co. v. Harper, 671 F.2d 1117 (8th Cir. 1982).

When both fraud and breach of contract are pled, a buyer may pursue, but not recover, both revocation of acceptance and damages for breach of warranty. Roach v. Concord Boat Corp., 317 Ark. 474, 880 S.W.2d 305 (1994).

Applicability.

This section is applicable to cases where breach is of an implied warranty of fitness for a particular purpose. Lewis v. Mobil Oil Corp., 438 F.2d 500 (8th Cir. 1971).

Causation.

In a case alleging negligence, breach of contract, breach of warranty, strict product liability, and violations of the Arkansas Deceptive Trade Practices Act based on a claim that a casket was defective, the complaint failed to include the elements of the causes of actions pled because it failed to state facts that linked the damages to the conduct or product supplied; there was no way of knowing the condition of the casket purchased since it had not been disinterred or inspected since its burial in 1996. Clayton v. Batesville Casket Co., 2015 Ark. App. 361, 465 S.W.3d 441 (2015).

Damages.

Where buyer made payment on two remaining notes on purchase price, after discovering alleged defect, and used machine for over three years and made no effort to return it and rescind sale, and offered no evidence of damages, he was not entitled to recover damages on theory that machine was defective and that warranty was breached. Continental Moss-Gordin, Inc. v. Beaton, 247 Ark. 426, 446 S.W.2d 226 (1969).

—Incidental and Consequential Damages.

Consequential damages or anticipated profits cannot be recovered, as in the instance of diminished crop yield, unless the evidence establishes the alleged damages with reasonable certainty. Traylor v. Huntsman, 253 Ark. 704, 488 S.W.2d 30 (1972).

Any incidental and consequential damages stemming from a breach in regard to accepted goods may be recovered, and since the difference in the cost of the original and replacement trusses could be a proper element of such consequential damages, the court was correct in its admission of the evidence of cost of the replacements. Hanna Lumber Co. v. Neff, 265 Ark. 462, 579 S.W.2d 95 (1979).

—Loss of Profits.

Damages, under this section and § 4-2-715, for supply of improper oil to use in hydraulic system in saw mill included direct expenses and loss of profits for period during which the oil was used but did not include loss of profits occurring after plaintiff stopped using the oil and where this loss was due to plaintiff's lack of capital resources. Lewis v. Mobil Oil Corp., 438 F.2d 500 (8th Cir. 1971).

—Lost Time.

The buyer of a computer-assisted electrocardiographic system was not entitled to an award of damages for “lost time” which represented the time an employee was away from his other duties because of the increased time spent with the computer system due to its failure to operate as warranted, where there was no evidence that the employee requested payment for the special services or that the parties intended such a payment to be made. Wilson v. Marquette Elecs., Inc., 630 F.2d 575 (8th Cir. 1980).

—Measure.

In a suit based on misrepresentation as to the condition of a purchased car, compensatory damages based on the difference in the market value of the car as warranted and its value as a wrecked car was the proper measure of damages. Union Motors, Inc. v. Phillips, 241 Ark. 857, 410 S.W.2d 747 (1967).

Where there was no substantial evidence in the record as to value of machinery as delivered, trial court did not err in holding that evidence was insufficient to award damages for breach of warranty based on difference between market value of machine and the price paid. Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S.W.2d 784 (1969).

Where the trial court awarded damages on the basis of the difference at the time and place of acceptance between the value of goods accepted and the value which they would have had as warranted, the award was erroneous because the value to be considered was the reasonable market value of the goods delivered and not the value of the goods to a particular purchaser or for a particular purpose. KLPR TV, Inc. v. Visual Electronics Corp., 465 F.2d 1382 (8th Cir. 1972).

The measure of damages for a breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have if they had been as warranted. Smart Chevrolet Co. v. Davis, 262 Ark. 500, 558 S.W.2d 147 (1977); Walker Ford Sales v. Gaither, 265 Ark. 275, 578 S.W.2d 23 (1979).

Court properly determined damages in action on contract for sale of timber rights. Williams v. J.W. Black Lumber Co., 275 Ark. 144, 628 S.W.2d 13 (1982).

A buyer cannot recover his down payment under a breach of warranty claim. Microsize, Inc. v. Ark. Microfilm, Inc., 29 Ark. App. 49, 780 S.W.2d 574 (1989).

If the jury found for the buyer on the question of liability, they must fix the amount of money that would reasonably compensate him for the reasonable expense of necessary repairs to any property which was damaged, if the damage was proximately caused by the breach of the implied warranties by seller, given the relationship between subsections (2) and (3) of this section and § 4-2-715(1) and (2)(b). F.L. Davis Bldrs. Supply, Inc. v. Knapp, 42 Ark. App. 52, 853 S.W.2d 288 (1993).

Failure to Give Notice.

Buyer was not entitled to an award of damages under either this section or § 4-2-715 since the buyer failed to give notice of the alleged breach to the seller within a reasonable time after the buyer discovered or should have discovered the breach. Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980).

Nonconformities.

The concept of nonconformity includes not only breaches of warranties but also any failure of the seller to perform according to his obligations under the contract; it is thus apparent that breach of warranty and nonconformity are not entirely congruent concepts, the former being a subset of the latter. Ford Motor Credit Co. v. Harper, 671 F.2d 1117 (8th Cir. 1982).

The concept of nonconformity includes not only breaches of warranties but also any failure of the seller to perform according to his obligations under the contract. Microsize, Inc. v. Ark. Microfilm, Inc., 29 Ark. App. 49, 780 S.W.2d 574 (1989).

Use of Goods.

Use of the last shipment of goods despite knowledge of its unsuitability did not bar counterclaim for damages for nonconformity of the original shipment. Jones v. Atkins, 254 Ark. 472, 494 S.W.2d 448 (1973).

Cited: L.A. Green Seed Co. v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969); Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); McKnight v. Bellamy, 248 Ark. 27, 449 S.W.2d 706 (1970); Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.W.2d 80 (1971); Stimson Tractor Co. v. Heflin, 257 Ark. 263, 516 S.W.2d 379 (1974); Ozark Kenworth, Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984); Caterpillar Tractor Co. v. Waterson, 13 Ark. App. 77, 679 S.W.2d 814 (1984); Precision Steel Whse., Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993); Indus. Elec. Supply, Inc. v. Lytle Mfg., L.L.C., 94 Ark. App. 81, 226 S.W.3d 1 (2006).