(1) An agreement modifying a lease contract needs no consideration to be binding.

(2) A signed lease agreement that excludes modification or rescission except by a signed writing may not be otherwise modified or rescinded, but, except as between merchants, such a requirement on a form supplied by a merchant must be separately signed by the other party.

(3) Although an attempt at modification or rescission does not satisfy the requirements of Subsection (2), it may operate as a waiver.

(4) A party who has made a waiver affecting an executory portion of a lease contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

History: 1978 Comp., § 55-2A-208, enacted by Laws 1992, ch. 114, § 24.

OFFICIAL COMMENTS

UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.

Uniform Statutory Source. — Section 2-209 [55-2-209 NMSA 1978].

Changes. — Revised to reflect leasing practices and terminology, except that the provisions of subsection 2-209(3) [55-2-209 NMSA 1978] were omitted.

Purposes. — Section 2-209(3) [55-2-209 NMSA 1978] provides that "the requirements of the statute of frauds section of this Article (Section 2-201) [55-2-201 NMSA 1978] must be satisfied if the contract as modified is within its provisions." This provision was not incorporated as it is unfair to allow an oral modification to make the entire lease contract unenforceable, e.g., if the modification takes it a few dollars over the dollar limit. At the same time, the problem could not be solved by providing that the lease contract would still be enforceable in its pre-modification state (if it then satisfied the statute of frauds) since in some cases that might be worse than no enforcement at all. Resolution of the issue is left to the courts based on the facts of each case.

Cross References. — Sections 2-201 and 2-209 [55-2-201 and 55-2-209 NMSA 1978, respectively].

"Agreement". Section 1-201(3) [55-1-201 NMSA 1978].

"Between merchants". Section 2-104(3) [55-2-104 NMSA 1978].

"Lease agreement". Section 2A-103(1)(k) [55-2A-103 NMSA 1978].

"Lease contract". Section 2A-103(1)(l) [55-2A-103 NMSA 1978].

"Merchant". Section 2-104(1) [55-2-104 NMSA 1978].

"Notification". Section 1-201(26) [55-1-201 NMSA 1978].

"Party". Section 1-201(29) [55-1-201 NMSA 1978].

"Signed". Section 1-201(39) [55-1-201 NMSA 1978].

"Term". Section 1-201(42) [55-1-201 NMSA 1978].

"Writing". Section 1-201(46) [55-1-201 NMSA 1978].

Effective dates. — Laws 1992, ch. 114, § 238 made Laws 1992, ch. 114, § 24 effective July 1, 1992.