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Article 82

(1) The buyer loses the right to declare the contract avoided or to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them.

(2) The preceding paragraph does not apply:

(a) if the impossibility of making restitution of the goods or of making restitution of the goods substantially in the condition in which the buyer received them is not due to his act or omission;

(b) if the goods or part of the goods have perished or deteriorated as a result of the examination provided for in article 38; or

(c) if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered or ought to have discovered the lack of conformity.

COMMENT

1. Art. 82(1) appears to be in accord with the common law. Cf. UCC 2-608(2).

2. With respect to the exceptions in art. 82(2),

(a) is probably recognized, though perhaps not in all cases: it may depend on the facts and the reasons for the buyer's avoidance. Cf. Rowland v. Divall (1923) 2 K.B. 500 (C.A.), and UCC 2-608(2);

(b) appears to be in accord; but

(c) goes further than existing provincial law. Cf. E. Hardy & Co. v. Hillerns & Fowler (1923) 2 K.B. 490. This is because by using, converting or reselling the goods the buyer will be deemed to have accepted the goods. It will therefore be too late for him to avoid the contract even though the defect was a latent one and could not reasonably have been discovered by the buyer at an earlier date. The Uniform Commercial Code recognizes the buyer's right to revoke his acceptance where the defect is a latent one and to recover his payment after revocation has taken place (see UCC 2-608, 2-711(1)), but it too does not relieve the buyer from having to return the goods.

The theory of the exceptions appears to be that the buyer should not be precluded from being able to avoid the contract if his inability to return the goods is not his fault, and that the seller is adequately protected by the requirement in art. 84(2) that the buyer must account to him for all benefits which he has derived from the goods.

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