(1) Tender of delivery is a condition to the buyer's duty to accept the goods and, unless otherwise agreed, to his duty to pay for them. Tender entitles the seller to acceptance of the goods and to payment according to the contract.

(2) Where payment is due and demanded on the delivery to the buyer of goods or documents of title, his right as against the seller to retain or dispose of them is conditional upon his making the payment due.

History: 1953 Comp., § 50A-2-507, enacted by Laws 1961, ch. 96, § 2-507.

OFFICIAL 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, 41, 42 and 69, Uniform Sales Act.

1. Subsection (1) continues the policies of the prior uniform statutory provisions with respect to tender and delivery by the seller. Under this article the same rules in these matters are applied to present sales and to contracts for sale. But the provisions of this subsection must be read within the framework of the other sections of this article which bear upon the question of delivery and payment.

2. The "unless otherwise agreed" provision of Subsection (1) is directed primarily to cases in which payment in advance has been promised or a letter of credit term has been included. Payment "according to the contract" contemplates immediate payment, payment at the end of an agreed credit term, payment by a time acceptance or the like. Under this act, "contract" means the total obligation in law which results from the parties' agreement including the effect of this article. In this context, therefore, there must be considered the effect in law of such provisions as those on means and manner of payment and on failure of agreed means and manner of payment.

3. Subsection (2) deals with the effect of a conditional delivery by the seller and in such a situation makes the buyer's "right as against the seller" conditional upon payment. These words are used as words of limitation to conform with the policy set forth in the bona fide purchase sections of this article. Should the seller after making such a conditional delivery fail to follow up his rights, the condition is waived. The provision of this article for a ten day limit within which the seller may reclaim goods delivered on credit to an insolvent buyer is also applicable here.

Point 1: Sections 2-310, 2-503, 2-511, 2-601 and 2-711 to 2-713.

Point 2: Sections 1-201, 2-511 and 2-614.

Point 3: Sections 2-401, 2-403, and 2-702(1) (b).

"Buyer". Section 2-103.

"Contract". Section 1-201.

"Delivery". Section 1-201.

"Document of title". Section 1-201.

"Goods". Section 2-105.

"Rights". Section 1-201.

"Seller". Section 2-103.

Law reviews. — For article, "Buyers and Sellers of Goods in Bankruptcy," see 1 N.M. L. Rev. 435 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Effect of stipulation for return of advance payment, if order is not accepted, 1 A.L.R. 1513.

Entirety or divisibility of contract as affecting time of payment, 2 A.L.R. 677.

Right of purchaser to opportunity to pay in cash where tender has been made in other medium, 11 A.L.R. 811, 23 A.L.R. 630, 46 A.L.R. 914.

Rights and remedies of purchaser under seller's agreement to assist him in reselling the goods, 29 A.L.R. 666.

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.

Time of delivery as of the essence of the contract so as to release buyer in case of premature delivery, 47 A.L.R. 193.

Contract requiring seller to look to property alone for payment, 50 A.L.R. 714.

Reserving to seller right to demand cash or security, if buyer's credit or financial responsibility becomes impaired, 64 A.L.R. 1117.

Seller's right to retain down payment on buyer's unjustified refusal to accept goods, 11 A.L.R.2d 701.

In absence of written provision in sales contract, place where cash consideration for goods purchased is payable, 49 A.L.R.2d 1350.

77A C.J.S. Sales § 161 et seq.