GCK is proud to announce that attorneys E. Philip Groben and Sandra D. Mertens successfully represented their client during a four day bench trial before the Commercial Calendar of the Circuit Court of Cook County, Illinois.  At issue was the enforcement of a contract under the Uniform Commercial Code for the production of Personal Protective Equipment (“PPE”) in China in the early stages of the COVID pandemic. 

Defendant/buyer refused to make payment following the delivery of goods identified in the contract, and Plaintiff/seller brought an action for the price under UCC Section 2-709.  Defendant/buyer argued that a purported delivery delay forced it to cover, and that therefore not only was Plaintiff not entitled to the price, but that Defendant was entitled to counterclaim damages arising from the cover under Section 2-712. 

During the trial, Groben and Mertens established that a contract was formed for the manufacture and importation of goods from China pursuant to Section 2-204.  Included in the initial terms of this contract was a requirement that the identified goods be shipped within a five day period.  However, Groben and Mertens were able to demonstrate, through elicited testimony and the presentation of documents and written communications between the parties, that Defendant acquiesced to a course of performance inconsistent with the five-day delivery term and therefore waived its rights to enforce the purported shipping deadline.  Groben and Mertens were also able to show to the Court that the Parties’ course of performance during, and following, the manufacture and importation of the goods and communications between the parties following delivery of the goods modified the payment terms under Section 2-209.   

The Court ruled that Plaintiff was entitled to the contract price based upon evidence which displayed Defendant’s acceptance of the goods.  Section 2-606 provides for the acceptance of goods after buyer has a reasonable opportunity to inspect and notify the seller of non-conformity.  A buyer may accept goods in spite of non-conformity pursuant to Section 2-606.  Should delivery fail in any respect to conform to the contract the goods, then under Section 2-601 a buyer is allowed to reject the goods. However, the Court ruled that Defendant, through its actions and communications, accepted the goods, and upon acceptance Plaintiff was entitled to recover the price of the accepted goods.  Defendant, being unable to demonstrate Plaintiff breached the contract in any way, was not entitled to cover and therefore not entitled to damages arising therefrom.