Seller in Seattle contracts to deliver ten tons of noodles to Buyer in Boise. It is agreed that the goods will be shipped by rail under a nonnegotiable bill of lading consigning the goods to Sellers agent in Boise. When the shipment arrives in Boise the railroad is to notify Buyer, who will then make payment to Sellers agent. This agent will then in turn produce a delivery order directed to the railroad authorizing delivery to Buyer. The goods arrive and the Buyer is notified. Seller has instructed his agent, however, that the shipment not be turned over to Buyer but that instead it be put into storage in Boise for possible sale to another buyer at a higher price. Does the Buyer have the right to get thes

-- Anonymous, November 02, 1998

Answers

e noodles?

-- Anonymous, November 02, 1998

Assuming that these noodles are not deemed to be a unique product, I don't think it will be quite so easy for the Buyer to immediately assert a right to "get to these noodles" upon hearing from the agent that the seller has authorized it to withold release. Interpreting "getting to these noodles" to mean ordering specific performance, the Buyer would only be allowed such specific performance if the noodles were unique or "in other proper circumstances" according to UCC 2-716. There appear to be no such "other proper circumstances" in this case. Although 2-716(3) makes an exception for when the goods "have been shipped under reservation...", since the goods were shipped consigned to the Seller's agent, I interpret this to mean that they were not shipped under reservation to the Buyer. (The fallacy of my interpretation there could reverse the answer to this question.) In sum, I think that the Buyer is required to try to cover for the noodle purchase first. Only if it finds that it is impossible to cover, (or if it knows from the start that covering will be impossible), then can it "get to these noodles".

-- Anonymous, November 08, 1998