Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
III. Cases
1
1. Mitchell v. Lath (sale of land + alleged oral agreement to remove ice house)
1. Majority denies (Andrews): here, the contract appears to be an elaborate and complete
bargain, and this implies that the oral term could not have been part of the deal.
2. Dissent would disallow (Lehman): the document alone will not suffice. Need to look
to surrounding circumstances; here, conveyance agreement appears complete, but
ice-house is not necessarily a part of conveyance.
2. Hatley v. Stafford (land lease reserving right to cancel + alleged oral agreement limiting
cancellation to first 30-60 days)
1. Court allows parol evidence. Not inconsistent: Does not negate an express term, but is
such that it would be naturally have been included. Still, not a sophisticated business
transaction handwritten, and no counsel informal.
2. Literal reading of contract as having no time limit harsh result, because the value to
lessee grows over time, eventually to $400 per acre when wheat is ready to be harvested.
3. Hayden v. Hoadley (Vt. 1920), p.400 (conveyance of farm in return for improvements +
alleged oral agreement as to time).
1. Court disallows parol evidence because it contradicts the silent gap-filler term of
reasonable time as bona fide term of the K. troubling; court completing contract
and then looking to its completeness to determine it is unequivocal and complete
4. Long Island Trust (N.Y. 1976) (promissory note + alleged oral term that all the guarantors
have to sign onto the renewal. Guarantors renewed w/ only four, and objected when the
bank sued them to recover the loan).
1. Majority allows (Jasen): Where contract is silent on unconditional guarantee, oral
terms imposing conditions are not contradictory, so parol evidence is admissible. No
concern about reliability of promissory notes, because banking industry can easily put
that term in their promissory notes. Meadowbrook case.
2. Dissent would disallow (Breitel): Promissory notes usually are, and must be, complete
on their face, so parties can effectively rely on it. Common practice of banking
community is to assume that unconditionality is an implied term of promissory notes.
IV. EXCEPTIONS
1. Fraud: Oral evidence of fraud is NOT allowed to enforce the contract itself, BUT:
1. Allowed in order to rescind the fraud-induced contract.
2. Allowed in order to get out-of-pocket damages (tort damages) (similar to
reliance/restitution), BUT NOT expectancy.
2. Minority view: Oral evidence of fraud not allowed when it contradicts an express term.
1. What if the parol evidence of fraud negates a Merger Clause? Look to the clause to evaluate
the manifestations of intention:
1. General, one sentence clause: Sabo v. Delman (parol evidence of fraudulent intent
admissible in action to render contract void, despite merger clause)
1. Very specific to the term in question: LaFazia v. Howe (specified that buyer did
not rely on seller's representations of profitability, as well as an as-is clause)
2. Damages: fraud in the inducement claims are tort actions, so damages are limited to
indemnity for the actual pecuniary loss sustained as a direct result of the wrong (out-ofpocket rule), not loss or benefit of the bargain. (contract expectancy damages).
2. Mistake
1. Hoffman v. Chapman (Court allows parol evidence to support reforming the contract)
1. Policy concern about encouraging people to be careful? not very significant here.
2. No meeting of the minds? likely not a fair argument in this case.
I. Most important factor is the plain meaning of the language used. Judge interprets the plain
meaning of an integrated agreement as a question of law. R.2d 212(2).
II. If the meaning is ambiguous and not plain, the finder of fact weighs any admitted extrinsic
evidence to decide which reasonable interpretation of the language to adopt. R.2d 212(2).
1. Plain-Enough Meaning Rule Judge decides ambiguity as a matter of law
1. If the meaning of the words themselves is clear, the judge may not consider extrinsic
evidence that creates an ambiguity. W.W.W. Associates (N.Y. 1990) Seller of real
property exercised cancellation clause, the meaning of which was so plain that judge
refused to let buyer argue that it was inserted solely for the buyers benefit.
2. However, judge may determine that it is ambiguous, requiring extrinsic evidence.
2. Context Interpretation Rule (Majority) Judge considers extrinsic evidence
1. Judge must seek to ascertain the intentions of the parties, by considering evidence of
ambiguity consistent with the terms. Pacific Gas & Electric (Cal. 1968) (trial court
wrongly refused to admit evidence supporting a certain meaning of an indemnity clause)
1. Discussions & Circumstances of Negotiations
2. Trade Usage & Course of Dealing Columbia Nitrogen (prices fell far below K
price, but judge admitted evidence that price readjustments were trade practice &
consistent w/ past course of dealing)
III. Language should be construed against the drafter, especially in the case of one-sided
contracts like insurance policies, etc.
2. Policy: In the business world, people are entitled to benefit from their dealings and are
entitled to assume that the other party knows the state of the world.
2. Fiduciary Relationship: Duty.
1. Legally bound to look out for the others interests and not take advantage of even honest
mistakes to their detriment. Applies to status-based relationships, not contract
relationships. (E.g. trustees; lawyer-client; doctor-patient; guardian-minor; ministerparishoner).
1. Jackson v. Seymour (Va. 1952) (brother/agent entrusted with management of sisters affairs
bought land from her cheap but failed to disclose timber he found on it, instead harvesting
it for his own profit.
II. MISTAKE
3
misrepresentation?
3. Zimbalist could see this as a warranty case: bill of sale contained an express warranty
that the goods would correspond to the description.
2. Part of the contract; remedy is contract damages, not rescission. ???
IV. IMPLIED WARRANTY
1. Contract for sale of real property limited to a certain use implies a warranty that the
property will be available for that use & free of patent defects discoverable upon
reasonable investigation.
1. Hinson v. Jefferson (N.C. 1975) (covenants restricted land to residential use, but
swampiness prevented buyer from obtaining a residential building permit)
2. Policy:
1. Fairer to allocate risks to the party who is best able to discover the defect cheaply and
efficiently with reasonable diligence. (i.e., having every interested buyer order their
own termite inspection would be inefficient and wasteful).
2. Moves away from caveat emptor. Buyer beware still applies to things the buyer
should see, but undiscoverable things are the responsibility of the seller to uncover and
disclose.
IV. FOR BOTH OF THE ABOVE: Where is the risk? Performing party must not have borne the
5
V. FRUSTRATION OF PURPOSE
6
1. Rescission if the object of the contract is frustrated by an event that the contract does
not contemplate or allocate risk for.
1. Krell v. Henry (K.B. 1903) (Rescission of contract to rent balcony apartment during
coronation when the coronation was unexpectedly postponed, because the entire purpose
of the rental had been to view the coronation) (Advertised for this purpose, Only rented
for the daytime; parties did not contemplate postponement).
2. Weyerhaeuser Real Estate (Rescission of lease granted to company for strip-mining
because a lack of approval for a permit made mining impossible, though not rental)
(parties contemplated opposition, but not such a tremendously paralyzing public outcry)
3. Chase Precast (Mass. 1991) (Buyer of concrete barriers Excused from future purchases,
because it had to agree not to set up any barriers in order to get rid of an unexpected
lawsuit) (risk of major event slashing quantity was not allocated, even though the record
shows that recipient reductions in quantity were a commonly-accepted occurrence)
2. Damages Prior to Frustration?
1. Traditional English View: NO Freeze parties in the position at which the event occurs.
2. American View: YES - Allow restitution for benefit conferred prior to frustration AND
for reliance work done by the other party. (contra Fibrosa)
1. R.2d 89: A promise modifying a duty under a contract not fully performed is binding:
1. (a) if the modification is fair and equitable in view of circumstances not anticipated by
the parties when the contract was made; or
2. (b) to the extent provided by statute; or
3. (c) to the extent that justice requires (i.e., reliance)
2. If there arises unforeseen, burdensome conditions on the original performance, it is a valid
consideration for a promise of additional compensation for the original performance.
1. Brian Constr. (1978, 612) (Unanticipated Rubble = Consideration, where sub began
work but discovered substantial buried rubble, and general orally agreed to pay extra).
2. Alaska Packers: If the nets really were faulty, could provide consideration for demand
of more $$ if it really impacted their productivity and pay enough.
3. If sub promises 3P owner to do what it promised to general, its new contract with new
consideration.
1. When McDevitt v. Stokes (1917) reaches opposite result (jockey in race: winning
$1K) , seems like its really about public policy: gambling nature of the bargain hints
at interference with contract in a regulated, sensitive setting. Also, 3P beneficiary theory
might make this problematic, if the original promise was already intended to benefit the
3P who was the legitimate recipient of the second promise.
Two Special Kinds of Modifications that are OK:
I. Waiver:
1. Must be a voluntary relinquishment of a known right that is not a material part of the agreed
equivalent (cant waive heart of the bargain, b/c would turn K into gift promise)
1. Moon Motor Lodge (1968, 617) (implied waiver of a no-oral-modifications clause,
where owner saw contractor perform extra work and promised to pay for it,, making oral
promise to pay enforceable as a modification for consideration). Equitably, doesnt
matter whether it was technically waived before the oral promises were given.
2. Quigley v. Wilson (1991, 621)
1. modification, not waiver, where buyer and seller of land renegotiated payment
structure when buyers could no longer pay. Too material to be a waiver.
2. Consideration? Court finds it in unanticipated circumstances of dramatically
plummeting land values + buyers unanticipated inability to make $$ off the land.
3. There may be a problem with whether this risk was allocated, but the fact that the
parties manifested intention to be bound to a new agreement cuts the other way.
2. No need for consideration for the actual waiving of the right.
3. A waiver cannot be revoked at common law, though UCC allows if no reliance.
4. A condition is considered waived by a party when partys conduct would otherwise be fraud
under that condition. Moon Motor Lodge.
II. Accord & Satisfaction
1. Negotiated settlement of a good-faith dispute over money actually due is enforceable,
because each party is giving up their right to stand on their good faith belief.
2. Martin Remodeling (627) (Valid A&S, where debtor sent check with written paid in full
condition and seller cashed the check. Cashing = acceptance, and irrelevant if creditor
crossed out the condition.
3. School Lines (628) Where price was clearly stipulated, cashing insufficient paid in full
check is not A&S; dispute was about separate money owed, not the price itself.
RECAP:
10
I. Bargain must be such that no fair-minded person could propose, and no rational person
could agree to. Excuse of last resort, when the other policing devices fail to work.
Lopsidedness is not by itself sufficient.
1. Woollums v. Horsley (Ky. 1892) YES. Hillbilly hermit induced to sell mineral rights to
the land for 40 cents / acre, when it was really worth 3700% more (about $15.00/acre).
1. Here, arms length dealing with no mistake, no undue influence, no incompetency, no
misrepresentation, and no problems with consideration.
2. BUT contract is simply irrational and ordering specific performance would be unjust.
2. Kleinberg v. Ratett (N.Y. 1929) SORT OF? No rescission of contract to buy land because
there was no fraud, but specific performance would nevertheless be unconscionable dues to
the presence of unforeseen water pipe easement just under the surface of the land,
prohibiting useful development. why not a mutual mistake case? Why no damages for
innocent breach of express warranty?
3. Waters v. Min Ltd. (Mass. 1992) YES. Seller was induced by her boyfriend to sell an
annuity investment contract for less than a third of its present value. No rescission on other
theories because any inducements/influence came from 3P, but unconscionable because no
way that any fair-minded person would accept this.
4. Batsakis (WWII loan case) Perhaps, if all else failed, one could try to argue that the
$2000 was interest on $25 loan and that such high interest (10,000%) is unconscionable.
II. Generally, Two aspects of Unconscionability Required
1. Procedural Unconscionability How was deal concluded? Elements of undue influence,
unfair dealings, or questionable circumstances? Look to fine print, strange clauses, etc.
2. Substantive Unconscionability What are the actual terms of the exchange? Is it a fair
exchange that reasonable people would agree to?
3. Courts may be willing to sustain a claim upon only one if it is so out of proportion. See
Williams v. Walker-Thomas Furniture Co. (1965, 693)
1. Shop operated with a cross-collateralization clause in the obscure fine print, distributing
any debts across all items that consumer had bought from them until everything was
paid off. Thereby, the shop retained the right to repossess all the items if the buyer
defaulted.
III. Every contract imposes upon each party a duty of good faith and fair dealing in its
performance and its enforcement. R.2d 205 Examples of bad faith: evasion of the spirit
of the bargain, lack of diligence and slacking off, willful breach, abuse of a power to specify
terms, and interference with performance.
3.
4.
R.2d. 238 ...[I]t is a condition of each party's duties ... that the other party
either render or, with manifested present ability to do so, offer performance of his
part of the simultaneous exchange.
Rule still applies in transactions where defects may be apparent ahead of time
(e.g., real estate closings). Seller gets a reasonable chance to cure; breach is not
automatic unless defects are impossible to cure without difficulty in a reasonable
time. Want to promote free alienability of property whenever possible.
1. Ziehen v. Smith (N.Y. 1896) (No rescission/recovery of down payment when
buyers discovered a foreclosure action against the property, because the buyer
never actually demanded performance.)
1. Doesnt matter if it seemed incurable, because the seller could have paid
the mortgage or negotiated the lien to cure the problem.
2. Cohen v. Kranz (N.Y. 1963) (No rescission/recovery of down payment when
buyers discovered covenants on title and problems with fence and pool, but
rescinded rather than listing defects and giving seller opportunity to cure).
1. Title with curable defects was not a breach until buyer demanded good title.
Buyers rejection of title was an anticipatory breach.
3. Caporale v. Rubine (1981) (Rescission where seller conveyed the promised
land to someone else; however, buyer cannot sue for damages, since he was also
unable to tender performance at the time.
4. Time is of the Essence Clause cuts against giving reasonable time to cure.
3. SUBSEQUENT PERFORMANCE
5.
14
1. Non-performance of the bargain entirely relieves the other party of its duties under
the contract, unless the contract can be seen as divisible.
1. Was it the basis of the parties bargain that the contract be performed in its entirety?
If not, the portions of one partys performance may be impliedly conditioned on the
other party rendering part performance, even if it was not in the agreement.
2. Traditional Common Law
1. Wary of imposing hard-and-fast conditions that the parties never actually agreed to.
2. Stewart v. Newbury (N.Y. 1917)
1. Where construction contract is silent on manner of payment, contract was
entire and jury should not have been instructed to impose duty to make
progress payments. Plaintiff who left job early is in breach.
2. Recovery for benefit conferred? Look to see whether payment was meant as
compensation for the completed work, OR for work done along the way.
3. Kelly Construction (N.J. 1918)
1. Where contract for all the hard brick required at $7 per thousand was silent on
manner of payment, contract was entire and seller halting supply was breach,
because a failure to pay when a part delivery has been made does not excuse
seller from completing delivery.
3. Restatement - APPORTIONMENT
1. How to apportion? Can performance/payment be paired up so as not to damage
the parties? Look to express K, practical structure of the performance, the sense of
the deal & intention of the parties, custom, what seems to make most commercial
sense, etc. E.g., concrete hard to apportion, but logically separate from windows.
1. By Time (Installments) (R.2d 233)
1. Performance is all due at one time, unless not possible or otherwise provided.
2. When partially due at one time, other partys performance (by default) is also
due if it can be so apportioned that there is a comparable part due then.
3. Kelly Constr. would probably have come out differently: $7 per thousand
delivered as needed. this can fairly easily be apportioned, AND it is fairer
to the type of deal the parties have.
2. By Agreed Equivalents (R.2d 240)
1. Divisible if performances can be apportioned into corresponding pairs
of part performances that are properly regarded as agreed
equivalents, such that part performance triggers a duty in the other party.
2. If court finds agreed equivalents, a party may be in partial breach of the
contract but still be able to recover on the contract for a different agreed
equivalent.
1. Tipton v. Feitner (N.Y. 1859) (Single Contract to deliver dressed hogs at
one price and live hogs at another price several days later; otherwise
silent. When buyer withheld payment for the dressed hogs when seller
failed to deliver live hogs, seller could still sue under K and buyer could
collect damages for breach of second contract)
4. UCC 2-307 GOODS
1. All must be delivered in a single delivery, and payment is not due unless the entire
delivery is made, unless circumstances give either party the right to make or
demand delivery in lots, in which case the price may be apportioned.
circumstances may imply installment contract.
16
4.
Conditions of Satisfaction
1. Third-Party Condition of Satisfaction Other partys commitment to accept depends on
third-party certification of condition.
2. First-Party Conditions of Satisfaction obligors own commitment depends on him
being satisfied.
1. Objective (utility) OR Subjective good faith (fancy)
5.
6.
7.
LEVEL OF PERFORMANCE
REMEDY
Substantial
Contract Price Damages
(Small breach; Material part of agreed Cost of Performance OR Difference in Value
equivalent delivered)
No breach of constr. condition if substantial performance
Insubstantial
Rescission + Quantum Meruit (Off-contract just restitution)
(Significant, material breach; not even Even a breaching party can recover in quantum meruit if
a material part was delivered)
performance is substantial, because perfect performance is
not generally a condition to payment.
[Willful Bad Faith]
None?
V. PROMISE OR CONDITION?
1. Is this linguistic expression a condition, the nonoccurrence of which justifies rescission
17
and excuses further performance, or a promise, the breach of which creates liability for
damages?
2. R.2d 227(1) In resolving doubts as to whether an event is made a condition of an
obligors duty, and as to the nature of such an event, an interpretation is preferred that
will reduce the obligees risk of forfeiture, unless the event is within the obligees
control or the circumstances indicate that he has assumed the risk.
3. Key factor is whether party subject to condition assumed the risk of events non-occurrence.
VI. CASES
1. Gladholm v. Hays (England 1841) (promised date of departure is CONDITON)
1. TEXT: distinct from rest of terms because all the terms use the word shall, while the
clause in question uses the word to leave on [this date].
2. CONTEXT: Date of departure for a boat charter goes to the very root and the whole of
the consideration of the contract
2. Howard v. FCIC (4th Cir. 1976) (shall not destroy stalks is PROMISE)
1. TEXT: Did not use the terms condition precedent or similar words like warranty,
when elsewhere it explicitly claimed that proof of loss is a condition precedent.
2. CONTEXT: No evidence that farmer fraudulently plowed his stalks under; rather,
reasonable evidence suggests he was used to a different policy and simply didnt know
about the provision because this clause was only added three years prior. Serious
forfeiture risk of finding a condition, while finding no condition still allows a trial to
proceed to determine damages, fraud, etc.
3. POLICY: Insurance policies are to be construed against the insurer, because general
principal of contract law is to construe language against the drafter
3. Ewell (repayment when he had sold his timber is timing, PROMISE)
1. TEXT: not clear?
2. CONTEXT: in loan contexts, payment is not usually conditional! Simply cannot be that
the understanding was that If I do not sell my timber, I do not have to repay you.
4. Aimes (payment of brokers fee upon closing is CONDITION)
1. CONTEXT: It is the brokers job is to ensure that closing occurs. Broker has assumed
the risk that there might not be a deal, which is the purpose of brokers. Circumstances
indicate that brokers took that risk here
5. Assumption of the risk illustrations from 227.
1. Illus. 1. (Generals payment to Sub due no sooner than five days after Owner shall
have paid General therefor. PROMISE. Sub should not have to bear Owners credit
risk. Subs do not typically have the luxury of checking out owners credit risk when
contracting with the general.
1. BUT SEE Mascioni, where payments to be made as received from owner was
sufficient to put the Sub on notice that it was agreeing to assume the risk of Owners
nonpayment, especially in the context of the Depression.
2. Illus. 2. (promising payment to Engineer as soon as the mine is in successful
operation. is PROMISE) Engineer did not assume the risk that the mine wont open.
Hes just doing a job and has no real control over opening.
3. Illus. 3. (promising additional payment to Inventor of untested process as soon as
the mine is in successful operation. is CONDITION), because in a deal like this,
reasonable to see the inventor has assumed the risk for two reasons: (1) inventor has
some contro AND (2) seems like taking risk for bonus payout.
18
Traditional
Common Law:
Examples
EXCUSED BY ESTOPPEL
(induced detrimental reliance)
EXCUSED BY WAIVER
(voluntarily relinquishing known right)
UCC 2-209
recognizes the
possibility of:
19
20
21
3.
4.
5.
6.
22
Remedy
Contract Price Damages
Cost of Performance, OR
Difference in Value
Quantum Meruit
(Off-contract just restitution)
None (?)
Standard substantial-performance case is a performing party (e.g., contractor) who is seeking payment
for work already completed. Two Issues:
I. Has substantial performance occurred?
1. How much physical work been done/delivered, measured by total amount of work & by total
contract price. If alleged damages are very large compared to the contract price, easier
argument to say performance wasnt substantial.
II. How should contract damages be measured?
1. Cost of Performance, OR Difference in Value?
I. SUBSTANTIAL PERFORMANCE (813-822)
1. Plante v. Jacobs (Wis. 1960) (Substantial Performance, because while there were many
things wrong with the house, but in the end none of them went to the essence of the bargain
or were very important to remedy except the living room wall)
2. Jacob & Youngs v. Kent (N.Y. 1921) (Substantial Performance, rejecting owners argument
that the use of the correct pipes is a condition, and that because the wrong pipes were used,
all obligations excused.)
3. Reynolds v. Armstead (Colo. 1968) (NOT Substantial Performance where color of veneer
bricks was wrong; lower court erroneously still awarded contract damages because quantum
meruit was zero.
4. Worcester Heritage Society, Inc. (Mass. Ct. App. 1991) (Substantial Performance where
buyer completed most of the promised exterior restoration of the historic house and also
gutted interior before running out of money and halting the work, but not expressly
repudiation, which would have been a total breach. Here, forfeiture risk is great if Society is
allowed to reclaim the house rather than simply hold him liable for cost of completion.
Tichnor Bros. v. Evans (Vt. 1918) (Substantial Performance where buyer receives goods,
but refuses to pay because seller breached promise not to sell to other merchants. Seller is
entitled to the contract price minus any damages)
II. ASSURANCE OF DUE PERFORMANCE
1. If one has grounds to believe that other party will commit total breach, may suspend
performance and demand adequate assurance of due performance under R.2d 251.
2. Failure to give assurance within a reasonable time counts as repudiation.
3. BUT any independent suspension of performance in anticipation of a likely breach will be
done at partys own risk. Reasonable belief that the other party will not be able to perform is
not an excuse for nonperformance.
1. Hathaway v. Sabin (1891) (performer suing venue owner after venue owner failed to
prepare for concert due to snowstorm, assuming performers would be held up. Court
finds total breach and awards contract price. Risk should fall on venue, not performers.
23
1. Obligations: design, engrave, and print custom papers; furnish within 1889.
2. Defective? A few days into 1890.
3. Good faith rejection? not justified by the trifling delay, time is not a material part
of the bargain here, and was clearly not a strict deadline. Substantial performance.
4. Forfeiture Risk is very significant. In a contract for artistic work and skill, the items
are unique, and they cannot simply sell them elsewhere.
7. Substitute of conforming tender must also be perfect. Worldwide RV Sales & Service
1. Rescission where contract for motor home specified clearly that it would be outfitted
with dual roof air conditioning, but they only built it with one.
2. Dealers offer to fix it by installing two more in the proper places, and taking the
original out would leave a hole in the roof!! Not perfect under PTR. Rescission.
IV. GOODS: ACCEPTANCE & INEFFECTIVE REJECTION
1. Acceptance in the face of nonconformity effective when the buyer has a reasonable
opportunity to inspect the goods and signifies to the seller that it will take them in spite of
nonconformity, OR when buyer fails to make an effective rejection.
2. After Acceptance, Buyer may only revoke if it can demonstrate that any nonconformity
substantially impairs [their] value to him.
1. Fortin: Look to the subjective needs of the buyer, and the totality of the circumstances
in each particular case. Even cosmetic defects can qualify if they go unrepaired despite
numerous complaints, or are such that they make unusual or excessive maintenance
necessary for use. Even if they are curable, they reduce the value if they occur in a
series and shake the buyers confidence and raise his apprehension of the good.
2. Plateq Corp. (Conn. 1983) Judge Peters
1. Contract to custom-build tanks. Builder/Seller was in breach for major delays. BUT
buyers inspector looked them over and noted only a few more deficiencies, which
seller promised to remedy by the next day. Inspector implied that a truck would
arrive soon to pick them up. Instead, buyer issued general cancellation.
2. Acceptance Valid under UCC.
1. Inspector knew about the nonconformity and still manifested willingness to take
them. Waived. 2-606(1)(a)
2. AND buyers failed in their nastygram to offer an alternative means of and
opportunity to cure. 2-606(1)(b)
3. Revocation Wrongful.
1. No impairment of value.
2. Forfeiture risk was very great. Tanks could not be resold.
3. Fortin v. Ox Bow Marina (Buyers revoked acceptance of powerboat after 4 months).
1. Valid Revocation:
1. Massive problems impairing value, and not cosmetic or insubtantial: engine
overheating twice, pumps defective, electronics malfunctioning, toilet not
working, etc. Some were repaired by seller, but many were not despite repeated
complaints, despite the fact that the seller manifested an intention to repair it and
attempted to do so.
25
26
27
29
3.
4.
5.
30