M Civ JI 140.21 Contract Action - UCC: Lost or Damaged Goods (Risk of Loss - Absence of Breach)

The buyer has failed to pay for [ lost / damaged ] goods. The buyer must pay for [ lost / damaged ] goods when:

(a) the buyer has accepted the goods, or

(b) conforming goods are [ lost / damaged ]

(i) *(within a commercially reasonable time after [ the goods are delivered to the carrier / the goods are duly tendered by the carrier at the

(ii) *(after the seller delivers the goods to [ name of bailee ] and [ gives the buyer the notification or documents necessary to enable the buyer to take delivery / the bailee acknowledges the buyer’s right to possession of the goods ].)

(iii) *([ after the buyer has received the goods, if the seller is a merchant / or / after the seller has duly tendered delivery of the goods if the seller is not a merchant ].)

Note on Use

*The court should choose the subsection that is applicable. If there is an issue of which subsection applies, this instruction must be modified.

This instruction does not apply if there is a contractual agreement to the contrary, or if the sale is on approval. See MCL 440.2509(4). (See Hayward v Postma, 31 Mich App 720; 188 NW2d 31 (1971) for a discussion of contractual agreements on risk of loss.)

If an issue, this instruction may have to be supplemented to indicate the special rules relating to negotiable and nonnegotiable documents of title.

Comment

MCL 440.2509, .2709.

See Eberhard Manufacturing Co v Brown, 61 Mich App 268; 232 NW2d 378 (1975) (applying MCL 440.2509(1) to a “shipment” contract), and Hayward (applying MCL 440.2509(3)).

History

M Civ JI 140.21 was added January 1987. Amended July 2017.