Editor's notes.

- In light of the similarity of the issues dealt with, decisions under former Code 1933, § 96-305 are included in the annotations for this section.

Manufacturer's express warranty on a vehicle was not governed by the Magnuson-Moss Warranty Act, specifically 15 U.S.C. § 2304, but was governed by the Uniform Commercial Code, O.C.G.A. §§ 11-2-508,11-2-605, and11-2-607(3)(a) as the warranty was a limited warranty. Knight v. Am. Suzuki Motor Corp., 272 Ga. App. 319, 612 S.E.2d 546 (2005).

O.C.G.A. §§ 11-2-607 and11-2-717 apply only to sales of goods. Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804, 278 S.E.2d 708 (1981).

Evaluation of buyer's conduct as a whole.

- A buyer's conduct must be evaluated as a whole under O.C.G.A. § 11-2-607, which is designed to defeat commercial bad faith. Clow Corp. v. Metro Pipeline Co., 442 F. Supp. 583 (N.D. Ga. 1977).

Installation by buyer of heavy equipment supplied by seller is an act inconsistent with seller's ownership. United States ex rel. Fram Corp. v. Crawford, 443 F.2d 611 (5th Cir. 1971).

Effect of acceptance of goods.

- Where property is brought under implied warranty that it is reasonably suited to use intended, acceptance by purchaser waives all defects discovered by the purchaser, or which, by exercise of ordinary care and prudence, might have discovered before delivery. Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427 (1936) (decided under former Code 1933, § 96-305).

Where purchaser accepted and installed goods which were delivered late, subsequent attempts to revoke the purchase agreement were not effective. Management Assistance, Inc. v. Computer Dimensions, Inc., 546 F. Supp. 666 (N.D. Ga. 1982), aff'd sub nom. Computer Dimensions v. Basic Four, 747 F.2d 708 (11th Cir. 1984).

Trial court did not err in awarding a seller pre-judgment interest under O.C.G.A. § 7-4-16 in the seller's breach of contract action against a buyer to recover damages for unpaid principal on shipped material and unpurchased material because the seller's invoices were a due and payable liquidated debt on a commercial account subject to interest under § 7-4-16; because certain materials were delivered by the seller and accepted by the buyer, the buyer was responsible for payment according to the agreed-upon price. Scovill Fasteners, Inc. v. Northern Metals, Inc., 303 Ga. App. 246, 692 S.E.2d 840 (2010).

Acceptance does not foreclose suit for breach.

- Absent an explicit contract term so providing, even explicit acceptance does not foreclose buyer's suit for breach of warranty. International Multifoods Corp. v. Nat'l Egg Prods., 202 Ga. App. 263, 414 S.E.2d 253 (1991), cert. denied, 202 Ga. App. 906, 414 S.E.2d 253 (1992).

Reacceptance of goods.

- A buyer who has attempted to reject rather than to accept goods may nonetheless accept them by virtue of buyer's post-rejection conduct with respect to them. Likewise, a buyer who purports to revoke acceptance of goods may be found to have reaccepted them if, after such revocation, buyer performs acts which are inconsistent with the seller's ownership of the goods. Griffith v. Stovall Tire & Marine, Inc., 174 Ga. App. 137, 329 S.E.2d 234 (1985).

A buyer reaccepted a motor vehicle after purported revocation of acceptance, even though the buyer gave sufficient notice that buyer revoked acceptance of the vehicle, when the buyer refused the seller access to it, persisted in efforts to have the vehicle repaired by entities other than the seller, and continued to possess and use the vehicle, which had been driven over 120,000 miles. Griffith v. Stovall Tire & Marine, Inc., 174 Ga. App. 137, 329 S.E.2d 234 (1985).

Burden of showing breach of express warranty.

- After acceptance of personal property sold under express warranty, it is presumed that it is of the quality ordered, and burden is upon buyer in all cases to show that it was not. Frick Co. v. Lawson, 50 Ga. App. 511, 179 S.E. 274 (1935) (decided under former Code 1933, § 96-305).

Manufacturer did not breach its express warranty as the manufacturer addressed each defect in a vehicle as it arose, most repairs were made within days, and the only extended delay was the result of the buyer's decision to postpone bringing the vehicle into the repair facility. Knight v. Am. Suzuki Motor Corp., 272 Ga. App. 319, 612 S.E.2d 546 (2005).

Questions of fact.

- Reasonableness of notice by buyer of defect and responsibility for defect are questions of fact. Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804, 278 S.E.2d 708 (1981).

Issues such as whether an effective revocation of acceptance was made, whether reasonable notification of revocation was given to the seller, and whether the value of the goods was substantially impaired are ordinarily matters for determination by the trier of fact, even where the buyer has continued to use nonconforming goods after an alleged revocation of acceptance. Griffith v. Stovall Tire & Marine, Inc., 174 Ga. App. 137, 329 S.E.2d 234 (1985).

Cited in Systems Consultants v. Eng Enters., Inc., 123 Ga. App. 641, 182 S.E.2d 188 (1971); Beavers v. Mastan Co., 124 Ga. App. 498, 184 S.E.2d 476 (1971); Southern Concrete Prods. Co. v. Martin, 126 Ga. App. 534, 191 S.E.2d 314 (1972); Coast Scopitone, Inc. v. Self, 127 Ga. App. 124, 192 S.E.2d 513 (1972); Carr v. Jacuzzi Bros., 133 Ga. App. 70, 210 S.E.2d 16 (1974); Romedy v. Willett Lincoln-Mercury, Inc., 136 Ga. App. 67, 220 S.E.2d 74 (1975); Dixie Lime & Stone Co. v. Wiggins Scale Co., 144 Ga. App. 145, 240 S.E.2d 323 (1977); Pepsico Truck Rental, Inc. v. Eastern Foods, Inc., 145 Ga. App. 410, 243 S.E.2d 662 (1978); Hawkins v. UPM, Inc., 159 Ga. App. 231, 283 S.E.2d 87 (1981); Sires v. Luke, 544 F. Supp. 1155 (S.D. Ga. 1982); W.M. Hobbs, Ltd. v. Accusystems of Ga., Inc., 177 Ga. App. 432, 339 S.E.2d 646 (1986); Warner Robins Tree Surgeons, Inc. v. Kolb & Co., 181 Ga. App. 20, 351 S.E.2d 486 (1986); Amatulli Imports, Inc. v. House of Persia, Inc., 191 Ga. App. 827, 383 S.E.2d 192 (1989); Regency Nissan, Inc. v. Taylor, 194 Ga. App. 645, 391 S.E.2d 467 (1990); Massey v. Thomaston Ford Mercury, 196 Ga. App. 278, 395 S.E.2d 663 (1990); Buford v. Toys R' Us, Inc., 217 Ga. App. 565, 458 S.E.2d 373 (1995); Fried Group, Inc. v. Sundance Tractor & Mower, 218 Bankr. 247 (Bankr. M.D. Ga. 1998); SunTrust Bank v. Hightower, 291 Ga. App. 62, 660 S.E.2d 745 (2008).

Oral notification.

- Evidence that the buyer had complained about the quality of merchandise received and that the buyer told personnel of the seller that goods were defective, often immediately after inspecting the goods, presented an issue of material fact as to whether there was oral notification of defective accepted merchandise. Atwood v. Southeast Bedding Co., 226 Ga. App. 50, 485 S.E.2d 217 (1997).

Applicability to third-party beneficiary.

- Notice provisions of O.C.G.A. § 11-2-607 of a breach cannot apply to third-party beneficiary under O.C.G.A. § 11-2-318 where there has been no tender of goods by seller and no acceptance from seller by such third party. Chaffin v. Atlanta Coca-Cola Bottling Co., 127 Ga. App. 619, 194 S.E.2d 513 (1972).

The notice requirement of O.C.G.A. § 11-2-607 applies only to the buyer and not to a third-party beneficiary. Morgan v. Sears, Roebuck & Co., 693 F. Supp. 1154 (N.D. Ga. 1988); Morgan v. Sears, Roebuck & Co., 700 F. Supp. 1574 (N.D. Ga. 1988).

Applicable to breach of warranty of title.

- The notice of breach required in O.C.G.A. § 11-2-607(3)(a)applies in cases of breach of warranty of title. Oden & Sims Used Cars, Inc. v. Thurman, 165 Ga. App. 500, 301 S.E.2d 673 (1983).

Adequate notice may be dissipated by subsequent actions of buyer.

- A buyer's dealings must be evaluated under standard of commercial good faith, and while adequate notice might be given at one point in time, subsequent actions by the buyer might dissipate its effect. Clow Corp. v. Metro Pipeline Co., 442 F. Supp. 583 (N.D. Ga. 1977).

Fact that defendant has actual notice of breach does not waive or alleviate the requirement that plaintiff give notice of any breach within a reasonable time or otherwise be barred from any remedy for the breach. Oden & Sims Used Cars, Inc. v. Thurman, 165 Ga. App. 500, 301 S.E.2d 673 (1983).

Failure to give notice.

- When plaintiff buyers of distributorship opportunities sued defendants, the seller and the seller's principal and relatives and other corporate entities, alleging all of the products shipped to the buyers were defective, the warranty claims failed because there was no proof that notice of the defects were given. Brenner v. Future Graphics, LLC, 258 F.R.D. 561 (N.D. Ga. 2007).

Receipt and acceptance of goods required.

- Notice of breach under O.C.G.A. § 11-2-607 cannot be given until receipt and acceptance of goods. Warren's Kiddie Shoppe, Inc. v. Casual Slacks, Inc., 120 Ga. App. 578, 171 S.E.2d 643 (1969).

Adequacy of notice.

- No formality is required as to notice, and it is adequate if it merely informs seller within a reasonable time after goods are received and accepted by buyer. Holiday Homes, Inc. v. Bragg, 132 Ga. App. 594, 208 S.E.2d 608 (1974).

Failure to notify seller within reasonable time is a bar against recovery for all damages including any breaches of warranties which were caused by a difference in any characteristics or by any other apparent or obvious qualities of the goods. Economy Forms Corp. v. Kandy, Inc., 391 F. Supp. 944 (N.D. Ga. 1974), aff'd, 511 F.2d 1400 (5th Cir. 1975).

In an action alleging breach of implied warranties of merchantability and fitness for a particular purpose, the customer's failure to serve the seller with notice of the defect in the product until two years and three days after the customer suffered an injury did not bar relief; the delay alone, without prejudice to the seller caused by such delay, was insufficient to bar relief. Wal-Mart Stores, Inc. v. Wheeler, 262 Ga. App. 607, 586 S.E.2d 83 (2003).

Seller of trailers was entitled to judgment as a matter of law on a buyer's breach of contract claim; the buyer accepted delivery of the trailers pursuant to O.C.G.A. § 11-2-606(c) as the buyer acted inconsistently with the seller's ownership by undertaking to resell the trailers, and the buyer failed to timely notify the seller of any alleged breach as required by O.C.G.A. § 11-2-607(3)(a). Woodridge USA Props., L.P. v. Southeast Trailer Mart, Inc., F.3d (11th Cir. Feb. 1, 2011)(Unpublished).

Reasonable time for notification for retail consumer.

- Time of notification required by O.C.G.A. § 11-2-607(3)(a) is to be determined by applying commercial standards to merchant buyer. Consequently, "a reasonable time" for notification from retail consumer is to be judged by different standards so that in this case it will be extended, since rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of remedy. Jones v. Cranman's Sporting Goods, 142 Ga. App. 838, 237 S.E.2d 402 (1977).

Notice after relationship terminated and goods retrieved by seller.

- Written notice that goods were unacceptable sent only after the relationship had been terminated and all goods had been either sold or retrieved by the seller was not sufficient. Atwood v. Southeast Bedding Co., 226 Ga. App. 50, 485 S.E.2d 217 (1997).

Where vehicles in possession of buyer were confiscated as stolen property, service of the original suit, made eight months after confiscation removed the vehicles from control of either party, was reasonable notice under the circumstances. Hudson v. Gaines, 199 Ga. App. 70, 403 S.E.2d 852 (1991).

Summary judgment.

- The question of reasonableness of notice is ordinarily a factual one, although summary adjudication is appropriate if the uncontroverted facts establish that a plaintiff is not entitled to recover. International Multifoods Corp. v. Nat'l Egg Prods., 202 Ga. App. 263, 414 S.E.2d 253 (1991), cert. denied, 202 Ga. App. 906, 414 S.E.2d 253 (1992).

Where there was a material fact question as to whether a purchaser gave the manufacturer reasonable notice of defective goods, summary adjudication was precluded. Great W. Press, Inc. v. Atlanta Film Converting Co., 223 Ga. App. 861, 479 S.E.2d 143 (1996).

Whether purchaser acted unreasonably in not notifying seller, a defunct company, that it was dissatisfied that seller would not be providing the support services allegedly agreed upon was properly a question for the jury, and summary judgment on the basis of lack of notice was improperly granted to the seller. BDI Distribs. v. Beaver Computer Corp., 232 Ga. App. 316, 501 S.E.2d 839 (1998).

Notice need only let seller know transaction is troublesome.

- Content of notification required under O.C.G.A. § 11-2-607 need only be sufficient to let seller know transaction is still troublesome and must be watched. Jones v. Cranman's Sporting Goods, 142 Ga. App. 838, 237 S.E.2d 402 (1977); Clow Corp. v. Metro Pipeline Co., 442 F. Supp. 583 (N.D. Ga. 1977).

Notice need only inform seller of claimed breach.

- Notification which saves buyer's rights under O.C.G.A. § 11-2-607 need only be such as informs seller that transaction is claimed to involve a breach, thus opening way for normal settlement through negotiation. Clow Corp. v. Metro Pipeline Co., 442 F. Supp. 583 (N.D. Ga. 1977).

What notice need not contain.

- There is no reason to require that notification which saves buyer's rights under O.C.G.A. § 11-2-607 must include a clear statement of all objections that will be relied on by buyer, as is required under that section covering statements of defects upon rejection. Nor is there reason for requiring the notification to be a claim for damages or of any threatened litigation or other resort to remedy. Clow Corp. v. Metro Pipeline Co., 442 F. Supp. 583 (N.D. Ga. 1977).

Am. Jur. 2d.

- 17A Am. Jur. 2d, Contracts, § 639. 63 Am. Jur. 2d, Products Liability, §§ 659 et seq., 840 et seq., 868. 67 Am. Jur. 2d, Sales, §§ 661-665.

6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:549.

20A Am. Jur. Pleading and Practice Forms, Products Liability, § 38.

C.J.S.

- 42 C.J.S., Indemnity, §§ 15, 26. 77A C.J.S., Sales, § 192.

U.L.A.

- Uniform Commercial Code (U.L.A.) § 2-607.

ALR.

- Resale by buyer where seller has refused to receive the property rejected for breach of warranty, 24 A.L.R. 1445.

Loss of profits as elements of damages for fraud of seller, as to quality of goods purchased for resale, 28 A.L.R. 354.

Acceptance of instalment of goods as affecting buyer's right to rescind because of defects in that instalment, 29 A.L.R. 1517.

Effect of premature tender of goods which is refused by the buyer, 47 A.L.R. 193.

Contracts of sale or return as distinguished from contracts for sale on approval, 52 A.L.R. 589.

Use of article by buyer as waiver of right to rescind for fraud, breach of warranty, or failure of goods to comply with contract, 77 A.L.R. 1165; 41 A.L.R.2d 1173.

Estoppel of or waiver by buyer, in respect of shortage in commodity delivered and accepted as in full, as affecting his liability to pay for shortage or his right to recover back amount paid therefor, 113 A.L.R. 684.

Breach of warranty as to title as within statutory provision requiring notice of breach of warranty on sale of goods, 114 A.L.R. 707.

"Vouching in" of one who is not liable over to defendant but is liable over to one whom the defendant has vouched in, 123 A.L.R. 1153.

Deposit in mail of notice of claim required as condition of action against, or liability of, governmental body, as a giving of notice within required period, 175 A.L.R. 299.

Shipper's ratification of carrier's unauthorized delivery or misdelivery, 15 A.L.R.2d 807.

Buyer's acceptance of delayed or defective instalment of goods as waiver of similar default as to later instalments, 32 A.L.R.2d 1117.

Time within which buyer of goods must give notice in order to recover damages for seller's breach of express warranty, 41 A.L.R.2d 812.

Form and substance of notice which buyer of goods must give in order to recover damages for seller's breach of warranty, 53 A.L.R.2d 270.

Requirement of notice, by buyer of goods, of breach of warranty as applicable to actions for personal injury, 6 A.L.R.3d 1371.

Seller's promises or attempts to repair article sold as affecting buyer's duty to minimize damages for breach of sale contract or of warranty, 66 A.L.R.3d 1162.

Necessity that buyer of goods give notice of breach of warranty to manufacturer under UCC § 2-607, requiring notice to seller of breach, 24 A.L.R.4th 277.

Products liability: seller's right to indemnity from manufacturer, 79 A.L.R.4th 278.

Products liability: manufacturer's postsale obligation to modify, repair, or recall product, 47 A.L.R.5th 395.

Sufficiency and timeliness of buyer's notice under UCC § 607(3)(a) of seller's breach of warranty, 89 A.L.R.5th 319.