O.C.G.A. § 11-2-608 (2019)

Annotations

Law reviews. For note, “Buyer’s Right to Revoke Acceptance Against the Automobile Manufacturer for Breach of its Continuing Warranty of Repair or Replacement,” see 7 Ga.

L. Rev. 711 (1973). For article, “Buyer’s Right of Rejection: A Quarter Century Under the Uniform Commercial Code, and Recent International Developments,” see 13 Ga. L. Rev. 805 (1979). For annual survey of commercial law, see 38 Mercer L. Rev. 85 (1986).

JUDICIAL DECISIONS Authority to revoke acceptance in certain circumstances. - Buyer who has accepted goods may under certain conditions enumerated in O.C.G.A. § 112-608 revoke acceptance. Clow Corp. v. Metro Pipeline Co., 442 F. Supp. 583, 1977 U.S. Dist. LEXIS 14517 (N.D. Ga. 1977). Even after acceptance, the buyer has a right to revoke acceptance under the provisions of O.C.G.A. § 11-2-608 for nonconformance that substantially impairs the value of the goods. Prudential Metal Supply Corp. v. Atlantic Freight Sales Co., 204 Ga. App. 439, 419 S.E.2d 520, 1992 Ga. App. LEXIS 861 (1992). O.C.G.A. § 11-2-608 gives buyer right to revoke acceptance within reason-

able time for nonconformity not within purchaser’s knowledge at time of acceptance if such nonconformity substantially impairs its value to the buyer. Jacobs v. Metro Chrysler-Plymouth, Inc., 125 Ga. App. 462, 188 S.E.2d 250, 1972 Ga. App. LEXIS 1370 (1972). O.C.G.A. § 11-2-608(1)(b) refers to situations where nonconformity was discovered after acceptance. Trailmobile Div. of Pullman, Inc. v. Jones, 118 Ga. App. 472, 164 S.E.2d 346, 1968 Ga. App. LEXIS 1434 (1968). No revocation after acceptance and installation. - Once buyer has accepted and installed supplied units, any subsequent attempt at revocation is ineffective.

United States ex rel. Fram Corp. v. Crawford, 443 F.2d 611, 1971 U.S. App. LEXIS 11073 (5th Cir. 1971). Continued use is inconsistent with a revocation of acceptance. See Jenkins v. GMC, 240 Ga. App. 636, 524 S.E.2d 324, 1999 Ga. App. LEXIS 1432 (1999). Because the purchaser of an automobile continued to drive the vehicle, pay taxes on it, and insure it after the purchaser complained of defects, these post-revocation acts constituted exercises in ownership by the purchaser that were inconsistent with the seller’s ownership; the buyer’s attempted revocation was ineffective under O.C.G.A. §§ 11-2-606(1)(c) and 11-2-608(1)(b). Hines v. Mercedes-Benz USA, LLC, 358 F. Supp. 2d 1222, 2005 U.S. Dist. LEXIS 3083 (N.D. Ga. 2005). In a consumer’s suit against a car dealer for revocation of acceptance, regarding the sale of a used car which the dealer’s salesman falsely represented had not been in a wreck, it was not error for the trial court to grant a directed verdict to the dealer because, while there was evidence that the consumer attempted to revoke the acceptance and the dealer refused, the consumer subsequently acted inconsistently with the dealer’s ownership by continuing to possess the car and by installing a sunroof in it. Mitchell v. Backus Cadillac-Pontiac, Inc., 274 Ga. App. 330, 618 S.E.2d 87, 2005 Ga. App. LEXIS 758 (2005), cert. denied, No. S05C1878, 2005 Ga. LEXIS 784 (Ga. Nov. 7, 2005). When a consumer sued a car dealer for revocation of acceptance concerning the car she bought from it, the consumer’s continued use of the car and continued making payments on it were inconsistent with the dealer’s ownership of the car and defeated the revocation of acceptance claim, under O.C.G.A. § 11-2-608(1). Small v. Savannah Int’l Motors, Inc., 275 Ga. App. 12, 619 S.E.2d 738, 2005 Ga. App. LEXIS 872 (2005). Remedy available despite warranties limitation. - Buyer’s revocation of acceptance of lot or commercial unit whose nonconformity substantially impairs its value to the buyer is, under O.C.G.A. § 11-2-608, an available remedy

even where seller has attempted to limit its warranties. Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 278 S.E.2d 689, 1981 Ga. App. LEXIS 2034 (1981). Revocation of acceptance under O.C.G.A. § 11-2-608 is an available remedy even where the seller has attempted to limit its warranties. Esquire Mobile Homes, Inc. v. Arrendale, 182 Ga. App. 528, 356 S.E.2d 250, 1987 Ga. App. LEXIS 1714 (1987). Revocation is an available remedy even where the seller has attempted to limit its warranties by use of “as is” language under O.C.G.A. § 11-2-316. Prudential Metal Supply Corp. v. Atlantic Freight Sales Co., 204 Ga. App. 439, 419 S.E.2d 520, 1992 Ga. App. LEXIS 861 (1992). Revocation of acceptance is an available remedy even where the dealer has attempted to limit warranties. Reeb v. Daniels Lincoln-Mercury Co., 193 Ga. App. 817, 389 S.E.2d 367, 1989 Ga. App. LEXIS 1681 (1989). Truck buyer’s claims for rescission and fraud based on representations that the truck “was in good condition” and had “no problems,” when the truck had an oil leak, were precluded by the sales contract’s merger clause and “as is” language; however, the buyer stated a claim for revocation of acceptance under O.C.G.A. § 11-2608(2), making judgment on the pleadings improper. Villalobos v. Atlanta Motorsports Sales, LLC, 355 Ga. App. 339, 844 S.E.2d 212, 2020 Ga. App. LEXIS 306 (2020). Revocation required privity of contract and could only be asserted against seller. - Summary judgment on an automobile purchaser’s revocation claim was appropriate because revocation of a sale requires privity of contract and thus can be asserted only against a seller, but the purchaser was suing the automobile distributor, not the dealership which sold the purchaser the car. Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 2005 U.S. Dist. LEXIS 6343 (N.D. Ga. 2005). Reacceptance of goods. - Buyer who has attempted to reject rather than to accept goods may nonetheless accept them by virtue of the 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, the 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 Ga. App. LEXIS 1764 (1985). A buyer reaccepted a motor vehicle after purported revocation of acceptance, even though the buyer gave sufficient notice that the 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 Ga. App. LEXIS 1764 (1985). Buyer, who purported to revoke acceptance of goods, could be found to have re-accepted them if, after such revocation, the buyer performed acts which were inconsistent with the seller’s ownership of the goods. Olson v. Ford Motor Co., 258 Ga. App. 848, 575 S.E.2d 743, 2002 Ga. App. LEXIS 1589 (2002). Buyers revoked their acceptance of a motor home based on failure to repair alleged defects; the buyers’ continued and extensive use of the luxury motor home for traveling to exotic places was not shown to be necessary, was inconsistent with revocation, and instead indicated reacceptance of the motor home. Gill v. Blue Bird Wanderlodge, No. 5:02-CV-328-2, 2004 U.S. Dist. LEXIS 27437 (M.D. Ga. Feb. 24, 2004). Trial court erred in granting summary judgment in favor of a dealership and a lender in a purchaser’s action to recover damages for the dealership’s failure to accept the purchaser’s attempted revocation under O.C.G.A. § 11-2-608 of an automobile purchase because the dealership and lender argued that the purchaser reaccepted the car since the purchaser continued driving the car after sending the revocation letter, and questions of fact existed about whether the purchaser’s revocation was timely, whether the purchaser reaccepted the car after the tender, and whether the alleged defects substantially impaired the car’s value to the pur-

chaser; whether the purchaser’s revocation was timely, whether the purchaser reaccepted the car, and whether the alleged defects substantially impaired the car’s value to the purchaser were questions of fact for the jury. Mauk v. Pioneer Ford Mercury, 308 Ga. App. 864, 709 S.E.2d 353, 2011 Ga. App. LEXIS 293 (2011). Breach of warranty to replace defective parts. - Where in standard form new car warranty manufacturer and dealer expressly disclaim all warranties except that “any part of this vehicle found defective under this warranty will be repaired or replaced,” the Uniform Commercial Code requires that a defect first be called to the attention of entities designated in the warranty, but does not prevent revocation of acceptance of vehicle by buyer after seller refuses to repair or replace defective parts. Jacobs v. Metro Chrysler-Plymouth, Inc., 125 Ga. App. 462, 188 S.E.2d 250, 1972 Ga. App. LEXIS 1370 (1972). Revocation of acceptance of peanuts, after blanching. - The act of blanching peanuts, perfected by raising the temperature to a certain degree, thus causing the outer red hulls to fall off, constituted an acceptance of the goods pursuant to O.C.G.A. § 11-2-606(1)(c), as an “act inconsistent with the seller’s ownership,” but the blanching process did not substantially change the peanuts, so the buyer’s revocation of acceptance of the peanuts, after the blanching process, was effective. Alimenta (U.S.A.), Inc. v. Anheuser-Busch Cos., 803 F.2d 1160, 1986 U.S. App. LEXIS 33393 (11th Cir. 1986). Seller’s knowledge of problem and adjustment to account. - Revocation of a contractor’s acceptance of equipment could be found where there was evidence that the supplier was well aware of the problems with the equipment and made an adjustment to the contractor’s account that the contractor did not find to be adequate. Williams v. Crispaire Corp., 225 Ga. App. 172, 483 S.E.2d 653, 1997 Ga. App. LEXIS 327 (1997), cert. denied, No. S97C1015, 1997 Ga. LEXIS 533 (Ga. June 6, 1997). Issues of fact. - Issues such as whether an effective revocation of accep-

tance 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 Ga. App. LEXIS 1764 (1985). Question of substantial impairment sufficient to authorize revocation is for jury, as well as question of reasonable time allowed seller to comply with warranty provision of sales contract. Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 278 S.E.2d 689, 1981 Ga. App. LEXIS 2034 (1981). Granting defendants a directed verdict on a truck buyer’s revocation of acceptance claim under O.C.G.A. § 11-2-608 was error when the buyer testified that the truck had been in for repairs more than 30 times, that the buyer had tried to get a replacement or a refund, and that the buyer had continued to use the truck and to pay the note, taxes, and insurance on the truck because the buyer could not afford to buy another truck while attempting to resolve the problems with this one and because the buyer had no other means of transportation; although certain provisions in O.C.G.A. §§ 11-2-602 and 11-2-606 might support the unqualified proposition that continued use was inconsistent with a revocation of acceptance, issues such as whether there was effective revocation of acceptance were ordinarily jury matters, and expecting a buyer to discontinue use could be contrary to the UCC’s rule of reasonableness. Franklin v. Augusta Dodge, Inc., 287 Ga. App. 818, 652 S.E.2d 862, 2007 Ga. App. LEXIS 1109 (2007). Factors considered in determining whether revocation made in reasonable time. - In determining whether revocation was made within a reasonable time after the buyer discovered or should have discovered the nonconformity, it is proper to consider all the surrounding circumstances, including the nature of the defect, the sophistication of the buyer, and the difficulty of its discovery. Bicknell v. B

& S Enters., 160 Ga. App. 307, 287 S.E.2d 310, 1981 Ga. App. LEXIS 3053 (1981). Attempted revocation too long after purchase. - Trial court properly granted a car dealership summary judgment on the purchasers’ revocation of acceptance claim because pretermitting whether the car at issue was nonconforming at the time the car was sold, the purchasers’ own undisputed evidence showed that the purchasers saw paint defects immediately before purchasing the car, asked if the car had been in a collision and the sales person replied that the sales person was “not sure” on that point, and the record also showed that the purchasers attempted revocation came long after the purchasers put thousands of miles on the car. Paulk v. Thomasville Ford Lincoln Mercury, Inc., 317 Ga. App. 780, 732 S.E.2d 297, 2012 Ga. App. LEXIS 781 (2012), cert. denied, No. S13C0223, 2013 Ga. LEXIS 342 (Ga. Apr. 15, 2013). Trial court properly granted the seller summary judgment on the buyers’ revocation of acceptance claim because the 13month delay of revocation after a substantial change in the condition of the vehicle was unreasonable as a matter of law. Edel v. Southtowne Motors of Newnan II, Inc., 338 Ga. App. 376, 789 S.E.2d 224, 2016 Ga. App. LEXIS 467 (2016). No revocation for car buyer who could not show defective at purchase. - There was no remedy of revocation because proof that the car was defective when sold was an essential element of the buyer’s claim, which the buyer did not satisfy; the evidence showed that the buyer drove the used car approximately 26,000 miles before the cooling system began to malfunction. Dildine v. Town & Country Truck Sales, Inc., 259 Ga. App. 732, 577 S.E.2d 882, 2003 Ga. App. LEXIS 254 (2003). Tender not required to revoke acceptance. - Trial court erred in granting summary judgment in favor of a dealership and a lender in a purchaser’s action to recover damages for the dealership’s failure to accept the purchaser’s attempted revocation under O.C.G.A. § 112-608 of an automobile purchase; the Uniform Commercial Code does not require

that a buyer tender unconforming goods to effect the revocation of a sales contract and that portion of Scott v. Team Toyota, 276 Ga. App. 257 (2005) holding otherwise is overruled. Mauk v. Pioneer Ford Mercury, 308 Ga. App. 864, 709 S.E.2d 353, 2011 Ga. App. LEXIS 293 (2011). Buyer need not tender nonconforming goods as a condition precedent to a claim based on a revocation of acceptance theory of recovery, much less make an unconditional tender, because the condition precedent to a claim for damages due to the seller’s failure to accept the buyer’s contract revocation under O.C.G.A. § 11-2608(2) is that the buyer give the seller notice of the revocation within a reasonable time and before the condition of the goods changes substantially from unrelated causes. Mauk v. Pioneer Ford Mercury, 308 Ga. App. 864, 709 S.E.2d 353, 2011 Ga. App. LEXIS 293 (2011). Insufficient opportunity to cure. - Motor coach buyer’s revocation of acceptance claim under O.C.G.A. § 11-2608(1)(b) failed because the buyer was

barred by the doctrine of invited error from denying that the buyer was required under § 11-2-608(1)(b) to provide the seller with an opportunity to seasonably cure any nonconformities in the coach prior to revocation. Car Transp. Brokerage Co. v. Blue Bird Body Co., 322 Fed. Appx. 891, 2009 U.S. App. LEXIS 7661 (11th Cir. 2009). Futility exception to opportunity to cure requirement did not apply. - Motor coach buyer’s revocation of acceptance claim under O.C.G.A. § 11-2608(1)(b) failed because the buyer’s providing only one opportunity to repair before the extent of the defect was truly apparent was not reasonable under O.C.G.A. § 11-1-204; the futility exception to providing an opportunity to cure did not apply because there was no evidence that the buyer knew prior to revocation that the seller would have been unable to repair the coach. Car Transp. Brokerage Co. v. Blue Bird Body Co., 322 Fed. Appx. 891, 2009 U.S. App. LEXIS 7661 (11th Cir. 2009).

RESEARCH REFERENCES Am. Jur. 2d. 67A Am. Jur. 2d, Sales, §§ 1192-1215. Am. Jur. Pleading and Practice Forms. 6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:569. C.J.S. 77A C.J.S., Sales, § 192. U.L.A. Uniform Commercial Code (U.L.A.) § 2608. ALR. Buyer’s acceptance of part of goods as affecting right to damages for failure to complete delivery, 169 A.L.R. 595.

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 for revocation of acceptance of goods under UCC § 2-608(2), 65 A.L.R.3d 354. Measure and elements of buyer’s recovery upon revocation of acceptance of goods under UCC § 2-608(1), 65 A.L.R.3d 388. What constitutes “substantial impairment” entitling buyer to revoke his acceptance of goods under UCC § 2-608(1), 38 A.L.R.5th 191.