Florida/Georgia Personal Injury & Workers Compensation

...the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver. Fla. Stat. ch. 672.209 (1997) (emphasis added).17 1. Although the UCC does not specifically lay out the elements of waiver, we have stated that waiver requires "(1) the existence at the time of the waiver a right, privilege, advantage, or benefit 17 The Contract included a provision requiring all modifications to be in writing. Although the parties therefore did not successfully modify the Contract, we apply chapter 672.209 to determine whether BMC's conduct constituted a waiver of the October 1987 delivery date. 19 which may be waived; (2) the actual constructive knowledge thereof; and (3) an intention to relinquish such right, privilege, advantage, or benefit." Dooley v....

...72, 83 (1932), courts disagree on whether the UCC retains this requirement. We conclude, however, that the UCC does not require consideration or detrimental reliance for waiver of a contract term. Our conclusion follows from the plain language of subsections 672.209(4) and (5)....

...ns must be in writing. Despite this contractual language, the retailer filed suit claiming that the manufacturer subsequently made an oral agreement to repurchase unsold devices, but failed to adhere to this oral agreement. Citing chapter 672.209(4), the court concluded that the parties' conduct demonstrated that they had waived the requirement that modifications be in writing, and therefore gave effect to the oral modification....

...to satisfy any reliance requirement for waiver. 21 Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280 (7th Cir.1986) (addressing section 2-209 of the model version of the UCC, from which Florida adopted section 672.209 verbatim), in which a panel of the Seventh Circuit addressed a contract that included a term prohibiting oral modifications, and considered whether an attempted oral modification could instead constitute a waiver....

...Further, they argue that the evidence of an agreement to repurchase subsequent to the written agreement is without effect because the written agreement specified that any modification had to be in writing and signed by the parties, and that this is in accord with Section 672.209(2), Florida Statutes. Appellant contends the alleged subsequent agreement cannot be considered a waiver under Section 672.209(4), Florida Statutes, since Standard sought total recission of the contract....

...ies' conduct. This testimony was corroborated to some extent by the series of letters from Standard to S of L and Linear. The written agreement provided that any modification had to be indicated in writing on the agreement and signed by the parties. Section 672.209(2) provides: A signed agreement which excludes modification or recission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party. (e.s.) However, Section 672.209(4) provides: Although an attempt at modification or recission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver....

...See also Doral Country Club, Inc. v. Curcie Bros., 174 So.2d 749 (Fla. 3d DCA 1965) cert. denied 180 So.2d 656 (Fla. 1965); Vitra-Spray of Florida, Inc. v. Gumenick, 144 So.2d 533 (Fla. 3d DCA 1962). This concept is consistent with the waiver provision of Section 672.209(4)....

...t strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver. 19 Fla. Stat. ch. 672.209 (1997) (emphasis added).17 1. Although the UCC does not specifically lay out the elements of waiver, we have stated that waiver requires “(1) the existence at the time of the waiv...

...We conclude, however, that the UCC does not require consideration or detrimental reliance for waiver of a contract term. 17 The Contract included a provision requiring all modifications to be in writing. Although the parties therefore did not successfully modify the Contract, we apply chapter 672.209 to determine whether BMC’s conduct constituted a waiver of the October 1987 delivery date. 20  Our conclusion follows from the plain language of subsections 672.209(4) and (5). While subsection (4) states that an attempted modification that fails may still constitute a waiver, subsection (5) provides that the waiver may be retracted unless the non-waiving party relies on the waiver....

...modifications must be in writing. Despite this contractual language, the retailer filed suit claiming that the manufacturer subsequently made an oral agreement to repurchase unsold devices, but failed to adhere to this oral agreement. Citing chapter 672.209(4), the court concluded that the parties’ conduct demonstrated that they had waived the requirement that modifications be in writing, and therefore gave effect 21 to the oral modification....

...courts have ignored the UCC’s plain language. The leading case espousing this view of waiver is Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280 (7th Cir. 1986) (addressing section 2-209 of the model version of the UCC, from which Florida adopted section 672.209 verbatim), in which a panel of the Seventh Circuit addressed a contract that included a term prohibiting oral modifications, and considered whether an attempted oral modification could instead constitute a waiver....

...determine whether mixed contract for goods and services fell under the U.C.C.). [4] To the extent the adequacy of consideration is an issue, an agreement modifying a contract does not require, additional consideration under the U.C.C. See Fla. Stat. § 672.209(a)....

...[3] Our Supreme Court or legislature may some day recede from this outdated common law concept. In the Uniform Commercial Code governing sales, in Florida as in all other states, a written agreement that says it can only be modified in a signed writing can only be modified in a signed writing. See § 672.209, Fla....

...Sale of a part-interest in goods is considered a sale of goods, section 672.105(3), Florida Statutes (1983), and it is undisputed that the price of La Rosa's interest in the automobile exceeds $500. Further, section 672.201 is applicable to an agreement modifying a contract, as well as to the original contract. See § 672.209(3), Fla....

that the statute of frauds be satisfied. See § 672.209, Fla.Stat. (1981). Reversed and remanded.