34. If the buyer sues the seller for breach of contract, is the buyer likely to prevail?

Parties to a contract for the sale of goods may agree that one party has the right to decide a specific term regarding performance at a later date. Leaving out a particular performance term will not render the contract invalid, and the party's specification must be in good faith and commercially reasonable. UCC § 2-311(1). When a party fails to seasonably make the specification or fails to cooperate in a way that is necessary for the other party to perform, AND that «specification would materially affect the other party's performance[,]» the injured party may, in addition to all other remedies, be «excused for any resulting delay in his own performance» as well as «proceed to perform in any reasonable manner or after the time for a material part of his own performance treat the failure. .. as a breach.» UCC § 2-311(3).

Pre-UCC, often when parties left open certain terms to be specified by a party at a later date, courts would find no contract existed due to indefiniteness.

A constructive condition is one not agreed on by the parties, but which courts impose as a matter of law, in order to ensure fairness. The distinction between express and constructive conditions is extremely important in relation to performance. Strict compliance with express conditions is ordinarily required. However, constructive conditions will only require substantial compliance to be satisfied. The most common type of constructive condition is when each party's performance is conditioned on the other party's performance. This arises with issues of cooperation or notice, where one party's obligation to perform is impliedly conditioned on the other party's cooperation or notice that the performance is due.

C is correct. The buyer failed to make a selection by March 1 regarding the quantities of the various candy bars to be delivered under the contract, however, the buyer did make the selection on March 2. As of March 2, the seller had all the necessary supplies and made no other transactions by that time, so the fact that the buyer's selection was one day late did not materially alter the seller's performance such that the buyer was in breach. Therefore, the seller's refusal to accept the buyer's selection of goods was not justified and the buyer should recover.

A is incorrect. This answer choice implicates the pre-UCC rule that leaving out a term to be specified by a party later would result in no contract having been formed. However, the UCC rejects this approach and imposes a different set of rules, which allows for leaving open such a term as long as the party's later specification is made in good faith and commercially reasonable. Here, the buyer's failure to specify the needed candy supplies was not fatal to the contract's formation, and it was performed in time so as to not materially alter the seller's performance, as explained above.

B is incorrect. The buyer's duty to select the type and quantity of candy bars was a constructive condition to the seller's ability to deliver those candy bars. The order of these performances necessarily required the cooperation of the buyer to make the appropriate selections so the seller would be able to deliver those selected candy bars.

D is incorrect. This answer reaches the correct answer with the wrong reasoning. The buyer is likely to prevail, but not because of the seller's right to make the selection in lieu of the buyer's selection. That remedy is available under the UCC when the buyer's failure to perform materially affects the seller's ability to perform, which was not the case here, as stated above.