(1) Tender of delivery requires that the seller put and hold conforming goods at the buyer's disposition and give the buyer any notification reasonably necessary to enable the buyer to take delivery. The manner, time and place for tender are determined by the agreement and this article, and in particular:
(a) tender must be at a reasonable hour, and if it is of goods they must be kept available for the period reasonably necessary to enable the buyer to take possession; but
(b) unless otherwise agreed the buyer must furnish facilities reasonably suited to the receipt of the goods.
(2) Where the case is within Section 55-2-504 NMSA 1978 respecting shipment tender requires that the seller comply with its provisions.
(3) Where the seller is required to deliver at a particular destination tender requires that the seller comply with Subsection (1) of this section and also in any appropriate case tender documents as described in Subsections (4) and (5) of this section.
(4) Where goods are in the possession of the bailee and are to be delivered without being moved:
(a) tender requires that the seller either tender a negotiable document of title covering such goods or procure acknowledgement of the bailee of the buyer's right to possession of the goods; but
(b) tender to the buyer of a nonnegotiable document of title or of a record directing the bailee to deliver is sufficient tender unless the buyer seasonably objects, and except as otherwise provided in Chapter 55, Article 9 NMSA 1978, receipt by the bailee of notification of the buyer's rights fixes those rights as against the bailee and all third persons; but risk of loss of the goods and of any failure by the bailee to honor the nonnegotiable document of title or to obey the direction remains on the seller until the buyer has had a reasonable time to present the document or direction, and a refusal by the bailee to honor the document or to obey the direction defeats the tender.
(5) Where the contract requires the seller to deliver documents:
(a) the seller must tender all such documents in correct form, except as provided in this article with respect to bills of lading in a set (Subsection (2) of Section 55-2-323 NMSA 1978); and
(b) tender through customary banking channels is sufficient and dishonor of a draft accompanying or associated with the documents constitutes nonacceptance or rejection.
History: 1953 Comp., § 50A-2-503, enacted by Laws 1961, ch. 96, § 2-503; 2005, ch. 144, § 31.
ANNOTATIONSOFFICIAL COMMENTS
UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.
Prior uniform statutory provision. — See Sections 11, 19, 20, 43(3) and (4), 46 and 51, Uniform Sales Act.
Changes. — The general policy of the above sections is continued and supplemented but Subsection (3) changes the rule of prior Section 19(5) as to what constitutes a "destination" contract and Subsection (4) incorporates a minor correction as to tender of delivery of goods in the possession of a bailee.
1. The major general rules governing the manner of proper or due tender of delivery are gathered in this section. The term "tender" is used in this Article in two different senses. In one sense it refers to "due tender" which contemplates an offer coupled with a present ability to fulfill all the conditions resting on the tendering party and must be followed by actual performance if the other party shows himself ready to proceed. Unless the context unmistakably indicates otherwise this is the meaning of "tender" in this Article and the occasional addition of the word "due" is only for clarity and emphasis. At other times it is used to refer to an offer of goods or documents under a contract as if in fulfillment of its conditions even though there is a defect when measured against the contract obligation. Used in either sense, however, "tender" connotes such performance by the tendering party as puts the other party in default if he fails to proceed in some manner. These concepts of tender would apply to tender of either tangible or electronic documents of title.
2. The seller's general duty to tender and deliver is laid down in Section 2-301 and more particularly in Section 2-507. The seller's right to a receipt if he demands one and receipts are customary is governed by Section 1-205. Subsection (1) of the present section proceeds to set forth two primary requirements of tender: first, that the seller "put and hold conforming goods at the buyer's disposition" and, second, that he "give the buyer any notice reasonably necessary to enable him to take delivery."
In cases in which payment is due and demanded upon delivery the "buyer's disposition" is qualified by the seller's right to retain control of the goods until payment by the provision of this article on delivery on condition. However, where the seller is demanding payment on delivery he must first allow the buyer to inspect the goods in order to avoid impairing his tender unless the contract for sale is on C.I.F., C.O.D., cash against documents or similar terms negating the privilege of inspection before payment.
In the case of contracts involving documents the seller can "put and hold conforming goods at the buyer's disposition" under Subsection (1) by tendering documents which give the buyer complete control of the goods under the provisions of Article 7 on due negotiation.
3. Under Paragraph (a) of Subsection (1) usage of the trade and the circumstances of the particular case determine what is a reasonable hour for tender and what constitutes a reasonable period of holding the goods available.
4. The buyer must furnish reasonable facilities for the receipt of the goods tendered by the seller under Subsection (1), Paragraph (b). This obligation of the buyer is no part of the seller's tender.
5. For the purposes of Subsections (2) and (3) there is omitted from this article the rule under prior uniform legislation that a term requiring the seller to pay the freight or cost of transportation to the buyer is equivalent to an agreement by the seller to deliver to the buyer or at an agreed destination. This omission is with the specific intention of negating the rule, for under this article the "shipment" contract is regarded as the normal one and the "destination" contract as the variant type. The seller is not obligated to deliver at a named destination and bear the concurrent risk of loss until arrival, unless he has specifically agreed so to deliver or the commercial understanding of the terms used by the parties contemplates such delivery.
6. Paragraph (a) of Subsection (4) continues the rule of the prior uniform legislation as to acknowledgment by the bailee. Paragraph (b) of Subsection (4) adopts the rule that between the buyer and the seller the risk of loss remains on the seller during a period reasonable for securing acknowledgment of the transfer from the bailee, while as against all other parties the buyer's rights are fixed as of the time the bailee receives notice of the transfer.
7. Under subsection (5) documents are never "required" except where there is an express contract term or it is plainly implicit in the peculiar circumstances of the case or in a usage of trade. Documents may, of course, be "authorized" although not required, but such cases are not within the scope of this subsection. When documents are required, there are three main requirements of this subsection: (1) "All": each required document is essential to a proper tender; (2) "Such": the documents must be the ones actually required by the contract in terms of source and substance; (3) "Correct form": All documents must be in correct form. These requirements apply to both tangible and electronic documents of title. When tender is made through customary banking channels, a draft may accompany or be associated with a document of title. The language has been broadened to allow for drafts to be associated with an electronic document of title. Compare Section 2-104(2) [55-2-104 NMSA 1978] definition of financing agency.
When a prescribed document cannot be procured, a question of fact arises under the provision of this Article on substituted performance as to whether the agreed manner of delivery is actually commercially impracticable and whether the substitute is commercially reasonable.
Point 2: Sections 1-205, 2-301, 2-310, 2-507 and 2-513 and Article 7.
Point 5: Sections 2-308, 2-310 and 2-509.
Point 7: Section 2-614(1).
Specific matters involving tender are covered in many additional sections of this article. See Sections 1-205, 2-301, 2-306 to 2-319, 2-321(3), 2-504, 2-507(2), 2-511(1), 2-513, 2-612 and 2-614.
"Agreement". Section 1-201.
"Bill of lading". Section 1-201.
"Buyer". Section 2-103.
"Conforming". Section 2-106.
"Contract". Section 1-201.
"Delivery". Section 1-201.
"Dishonor". Section 3-508.
"Document of title". Section 1-201.
"Draft". Section 3-104.
"Goods". Section 2-105.
"Notification". Section 1-201.
"Reasonable time". Section 1-204.
"Receipt" of goods. Section 2-103.
"Rights". Section 1-201.
"Seasonably". Section 1-204.
"Seller". Section 2-103.
"Written". Section 1-201.
The 2005 amendment, effective January 1, 2006, provided in Subsection (4)(b) that tender to the buyer of a record directing the bailee to deliver the goods is sufficient tender and that except as otherwise provided in Chapter 55, Article 9 NMSA 1978, receipt by the bailee of notification of the buyer's rights fixes those rights.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of seller as condition of delivery to insist on payment or resort to means not provided by contract to assure payment, 44 A.L.R. 443.
Insolvency of buyer as justifying seller on credit in refusing to deliver except for cash, 117 A.L.R. 1125.
Duty of seller to tender delivery where buyer has not exercised his option under contract to require shipment before time specified, 119 A.L.R. 1495.
May delivery which will support gift be predicated upon deposit in mail, filing of telegram or delivery to carrier, 126 A.L.R. 924.
Presumption and burden of proof as to consignee's title to or interest in respect of goods comprising shipment, in consignee's action against carrier for loss, damage, delay, nondelivery or conversion, 135 A.L.R. 456.
What amounts to acknowledgment by third person that he holds goods on buyer's behalf within statutory provision respecting delivery when goods are in possession of third person, 4 A.L.R.2d 213.
Delay in delivery placing goods at the risk of the party at fault under § 22(b) of Uniform Sales Act, 38 A.L.R.2d 658.
77A C.J.S. Sales § 157 et seq.