Code of the District of Columbia

Part II. Formation and Construction of Lease Contract.


§ 28:2A-201. Statute of frauds.

(a) A lease contract is not enforceable by way of action or defense unless:

(1) The total payments to be made under the lease contract, excluding payments for options to renew or buy, are less than $1,000; or

(2) There is a writing, signed by the party against whom enforcement is sought or by that party’s authorized agent, sufficient to indicate that a lease contract has been made between the parties and to describe the goods leased and the lease term.

(b) Any description of leased goods or of the lease term is sufficient and satisfies subsection (a)(2) of this section, whether or not it is specific, if it reasonably identifies what is described.

(c) A writing is not insufficient because it omits or incorrectly states a term agreed upon, but the lease contract is not enforceable under subsection (a)(2) of this section beyond the lease term and the quantity of goods shown in the writing.

(d) A lease contract that does not satisfy the requirements of subsection (a) of this section, but which is valid in other respects, is enforceable:

(1) If the goods are to be specially manufactured or obtained for the lessee and are not suitable for lease or sale to others in the ordinary course of the lessor’s business, and the lessor, before notice of repudiation is received and under circumstances that reasonably indicate that the goods are for the lessee, has made either a substantial beginning of their manufacture or commitments for their procurement;

(2) If the party against whom enforcement is sought admits in that party’s pleading, testimony, or otherwise in court that a lease contract was made, but the lease contract is not enforceable under this provision beyond the quantity of goods admitted; or

(3) With respect to goods that have been received and accepted by the lessee.

(e) The lease term under a lease contract referred to in subsection (d) of this section is:

(1) If there is a writing signed by the party against whom enforcement is sought or by that party’s authorized agent specifying the lease term, the term so specified;

(2) If the party against whom enforcement is sought admits in that party’s pleading, testimony, or otherwise in court a lease term, the term so admitted; or

(3) A reasonable lease term.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-201.

Uniform Commercial Code Comment

Uniform Statutory Source:Sections 2-201, 9-203(1) and 9-110.

Changes: This section is modeled on Section 2-201, with changes to reflect the differences between a lease contract and a contract for the sale of goods. In particular, subsection (1)(b) adds a requirement that the writing “describe the goods leased and the lease term“, borrowing that concept, with revisions, from the provisions of Section 9-203(1)(a). Subsection (2), relying on the statutory analogue in Section 9-110, sets forth the minimum criterion for satisfying that requirement.

Purposes: The changes in this section conform the provisions of Section 2-201 to custom and usage in lease transactions. Section 2-201(2), stating a special rule between merchants, was not included in this section as the number of such transactions involving leases, as opposed to sales, was thought to be modest. Subsection (4) creates no exception for transactions where payment has been made and accepted. This represents a departure from the analogue, Section 2-201(3)(c). The rationale for the departure is grounded in the distinction between sales and leases. Unlike a buyer in a sales transaction, the lessee does not tender payment in full for goods delivered, but only payment of rent for one or more months. It was decided that, as a matter of policy, this act of payment is not a sufficient substitute for the required memorandum. Subsection (5) was needed to establish the criteria for supplying the lease term if it is omitted, as the lease contract may still be enforceable under subsection (4).

Cross References:Sections 2-201, 9-110 and 9-203(1)(a).

Definitional Cross References: “Action”. Section 1-201(1).

“Agreed”. Section 1-201(3).

“Buying”. Section 2A-103(1)(a).

“Goods”. Section 2A-103(1)(h).

“Lease”. Section 2A-103(1)(j).

“Lease contract”. Section 2A-103(1)(l).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).

“Notice”. Section 1-201(25).

“Party”. Section 1-201(29).

“Sale”. Section 2-106(1).

“Signed”. Section 1-201(39).

“Term”. Section 1-201(42).

“Writing”. Section 1-201(46).


§ 28:2A-202. Final written expression: parol or extrinsic evidence.

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:

(1) By course of dealing or usage of trade or by course of performance; and

(2) By evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-202.

Section References

This section is referenced in § 28:2A-214.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-202.

Definitional Cross References: “Agreement”. Section 1-201(3).

“Course of dealing”. Section 1-205.

“Party”. Section 1-201(29).

“Term”. Section 1-201(42).

“Usage of trade”. Section 1-205.

“Writing”. Section 1-201(46).


§ 28:2A-203. Seals inoperative.

The affixing of a seal to a writing evidencing a lease contract or an offer to enter into a lease contract does not render the writing a sealed instrument and the law with respect to sealed instruments does not apply to the lease contract or offer.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-203.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-203.

Changes: Revised to reflect leasing practices and terminology.

Definitional Cross References: “Lease contract”. Section 2A-103(1)(l).

“Writing”. Section 1-201(46).


§ 28:2A-204. Formation in general.

(a) A lease contract may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of a lease contract.

(b) An agreement sufficient to constitute a lease contract may be found although the moment of its making is undetermined.

(c) Although one or more terms are left open, a lease contract does not fail for indefiniteness if the parties have intended to make a lease contract and there is a reasonably certain basis for giving an appropriate remedy.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-204.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-204.

Changes: Revised to reflect leasing practices and terminology.

Definitional Cross References: “Agreement”. Section 1-201(3).

“Lease contract”. Section 2A-103(1)(l).

“Party”. Section 1-201(29).

“Remedy”. Section 1-201(34).

“Term”. Section 1-201(42).


§ 28:2A-205. Firm offers.

An offer by a merchant to lease goods to or from another person in a signed writing that by its terms gives assurance it will be held open is not revocable, for lack of consideration, during the time stated or, if no time is stated, for a reasonable time, but in no event may the period of irrevocability exceed 3 months. Any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-205.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-205.

Changes: Revised to reflect leasing practices and terminology.

Definitional Cross References: “Goods”. Section 2A-103(1)(h).

“Lease”. Section 2A-103(1)(j).

“Merchant”. Section 2-104(1).

“Person”. Section 1-201(30).

“Reasonable time”. Section 1-204(1) and (2).

“Signed”. Section 1-201(39).

“Term”. Section 1-201(42).

“Writing”. Section 1-201(46).


§ 28:2A-206. Offer and acceptance in formation of lease contract.

(a) Unless otherwise unambiguously indicated by the language or circumstances, an offer to make a lease contract must be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.

(b) If the beginning of a requested performance is a reasonable mode of acceptance, an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-206.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-206(1)(a) and (2).

Changes: Revised to reflect leasing practices and terminology.

Definitional Cross References: “Lease contract”. Section 2A-103(1)(l).

“Notifies”. Section 1-201(26).

“Reasonable time”. Section 1-204(1) and (2).


§ 28:2A-207. Course of performance or practical construction.

Repealed.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830; Apr. 27, 2013, D.C. Law 19-299, § 4(b), 60 DCR 2634.)

Prior Codifications

1981 Ed., § 28:2A-207.

Editor's Notes

For present law, see § 28:1-303.

Uniform Commercial Code Comment

Uniform Statutory Source:Sections 2-208 and 1-205(4).

Changes: Revised to reflect leasing practices and terminology, except that subsection (2) was further revised to make the subsection parallel the provisions of Section 1-205(4) by adding that course of dealing controls usage of trade.

Purposes: The section should be read in conjunction with Section 2A-208. In particular, although a specific term may control over course of performance as a matter of lease construction under subsection (2), subsection (3) allows the same course of dealing to show a waiver or modification, if Section 2A-208 is satisfied.

Cross References:Sections 1-205(4), 2-208 and 2A-208.

Definitional Cross References: “Course of dealing”. Section 1-205.

“Knowledge”. Section 1-201(25).

“Lease agreement”. Section 2A-103(1)(k).

“Lease contract”. Section 2A-103(1)(l).

“Party”. Section 1-201(29).

“Term”. Section 1-201(42).

“Usage of trade”. Section 1-205.


§ 28:2A-208. Modification, rescission, and waiver.

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

(b) 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.

(c) Although an attempt at modification or rescission does not satisfy the requirements of subsection (b) of this section, it may operate as a waiver.

(d) 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.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-208.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-209.

Changes: Revised to reflect leasing practices and terminology, except that the provisions of sub section 2-209(3) were omitted.

Purposes:Section 2-209(3) provides that “the requirements of the statute of frauds section of this Article ( Section 2-201) 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.

Definitional Cross References: “Agreement”. Section 1-201(3).

“Between merchants”. Section 2-104(3).

“Lease agreement”. Section 2A-103(1)(k).

“Lease contract”. Section 2A-103(1)(l).

“Merchant”. Section 2-104(1).

“Notification”. Section 1-201(26).

“Party”. Section 1-201(29).

“Signed”. Section 1-201(39).

“Term”. Section 1-201(42).

“Writing”. Section 1-201(46).


§ 28:2A-209. Lessee under finance lease as beneficiary of supply contract.

(a) The benefit of a supplier’s promises to the lessor under the supply contract and of all warranties, whether express or implied, including those of any third party provided in connection with or as part of the supply contract, extends to the lessee to the extent of the lessee’s leasehold interest under a finance lease related to the supply contract, but is subject to the terms of the warranty and of the supply contract and all defenses or claims arising therefrom.

(b) The extension of the benefit of a supplier’s promises and of warranties to the lessee (§ 28:2A-209(a)) does not:

(1) Modify the rights and obligations of the parties to the supply contract, whether arising therefrom or otherwise; or

(2) Impose any duty or liability under the supply contract on the lessee.

(c) Any modification or rescission of the supply contract by the supplier and the lessor is effective between the supplier and the lessee unless, before the modification or rescission, the supplier has received notice that the lessee has entered into a finance lease related to the supply contract. If the modification or rescission is effective between the supplier and the lessee, the lessor is deemed to have assumed, in addition to the obligations of the lessor to the lessee under the lease contract, promises of the supplier to the lessor and warranties that were so modified or rescinded as they existed and were available to the lessee before modification or rescission.

(d) In addition to the extension of the benefit of the supplier’s promises and of warranties to the lessee under subsection (a) of this section, the lessee retains all rights that the lessee may have against the supplier which arise from an agreement between the lessee and the supplier or under other law.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830; July 25, 1995, D.C. Law 11-30, § 7(a), 42 DCR 1547.)

Prior Codifications

1981 Ed., § 28:2A-209.

Uniform Commercial Code Comment

Uniform Statutory Source: None.

Changes: This section is modeled on Section 9-318, the Restatement (Second) of Contracts ss 302-315 (1981), and leasing practices.

See Earman Oil Co. v. Burroughs Corp., 625 F.2d 1291, 1296-97 (5th Cir.1980).

Purposes: 1. The function performed by the lessor in a finance lease is extremely limited. Section 2A-103(1)(g). The lessee looks to the supplier of the goods for warranties and the like or, in some cases as to warranties, to the manufacturer if a warranty made by that person is passed on. That expectation is reflected in subsection (1), which is self-executing. As a matter of policy, the operation of this provision may not be excluded, modified or limited; however, an exclusion, modification, or limitation of any term of the supply contract or warranty, including any with respect to rights and remedies, and any defense or claim such as a statute of limitations, effective against the lessor as the acquiring party under the supply contract, is also effective against the lessee as the beneficiary designated under this provision. For example, the supplier is not precluded from excluding or modifying an express or implied warranty under a supply contract. Sections 2-312(2) and 2-316, or Section 2A-214. Further, the supplier is not precluded from limiting the rights and remedies of the lessor and from liquidating damages. Sections 2-718 and 2-719 or Sections 2A-503 and 2A-504. If the supply contract excludes or modifies warranties, limits remedies, or liquidates damages with respect to the lessor, such provisions are enforceable against the lessee as beneficiary. Thus, only selective discrimination against the beneficiaries designated under this section is precluded, i.e., exclusion of the supplier’s liability to the lessee with respect to warranties made to the lessor. This section does not affect the development of other law with respect to products liability.

2. Enforcement of this benefit is by action. Sections 2A-103(4) and 1-106(2).

3. The benefit extended by these provisions is not without a price, as this Article also provides in the case of a finance lease that is not a consumer lease that the lessee’s promises to the lessor under the lease contract become irrevocable and independent upon the lessee’s acceptance of the goods. Section 2A-407.

4. Subsection (2) limits the effect of subsection (1) on the supplier and the lessor by preserving, notwithstanding the transfer of the benefits of the supply contract to the lessee, all of the supplier’s and the lessor’s rights and obligations with respect to each other and others; it further absolves the lessee of any duties with respect to the supply contract that might have been inferred from the extension of the benefits thereof.

5. Subsections (2) and (3) also deal with difficult issues related to modification or rescission of the supply contract. Subsection (2) states a rule that determines the impact of the statutory extension of benefit contained in subsection (1) upon the relationship of the parties to the supply contract and, in a limited respect, upon the lessee. This statutory extension of benefit, like that contained in Sections 2A-216 and 2-318, is not a modification of the supply contract by the parties. Thus, subsection (3) states the rules that apply to a modification or rescission of the supply contract by the parties. Subsection (3) provides that a modification or rescission is not effective between the supplier and the lessee if, before the modification or rescission occurs, the supplier received notice that the lessee has entered into the finance lease. On the other hand, if the modification or rescission is effective, then to the extent of the modification or rescission of the benefit or warranty, the lessor by statutory dictate assumes an obligation to provide to the lessee that which the lessee would otherwise lose. For example, assume a reduction in an express warranty from four years to one year. No prejudice to the lessee may occur if the goods perform as agreed. If, however, there is a breach of the express warranty after one year and before four years pass, the lessor is liable. A remedy for any prejudice to the lessee because of the bifurcation of the lessee’s recourse resulting from the action of the supplier and the lessor is left to resolution by the courts based on the facts of each case.

6. Subsection (4) makes it clear that the rights granted to the lessee by this section do not displace any rights the lessee otherwise may have against the supplier.

Cross References: Sections 2A-103(1)(g), 2A-407 and 9-318.

Definitional Cross References: “Action”. Section 1-201(1).

“Finance lease”. Section 2A-103(1)(g).

“Leasehold interest”. Section 2A-103(1)(m).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).

“Notice”. Section 1-201(25).

“Party”. Section 1-201(29).

“Rights”. Section 1-201(36).

“Supplier”. Section 2A-103(1)(x).

“Supply contract”. Section 2A-103(1)(y).

“Term”. Section 1-201(42).


§ 28:2A-210. Express warranties.

(a) Express warranties by the lessor are created as follows:

(1) Any affirmation of fact or promise made by the lessor to the lessee which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the affirmation or promise.

(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods will conform to the description.

(3) Any sample or model that is made part of the basis of the bargain creates an express warranty that the whole of the goods will conform to the sample or model.

(b) It is not necessary to the creation of an express warranty that the lessor use formal words, such as “warrant” or “guarantee,” or that the lessor have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the lessor’s opinion or commendation of the goods does not create a warranty.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-210.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-313.

Changes: Revised to reflect leasing practices and terminology.

Purposes: All of the express and implied warranties of the Article on Sales (Article 2) are included in this Article, revised to reflect the differences between a sale of goods and a lease of goods. Sections 2A-210 through 2A-216. The lease of goods is sufficiently similar to the sale of goods to justify this decision. Hawkland, The Impact of the Uniform Commercial Code on Equipment Leasing, 1972 Ill.L.F. 446, 459-60. Many state and federal courts have reached the same conclusion.

Value of the goods, as used in subsection (2), includes rental value.

Cross References: Article 2, esp. Section 2-313, and Sections 2A-210 through 2A-216.

Definitional Cross References: “Conforming”. Section 2A-103(1)(d).

“Goods”. Section 2A-103(1)(h).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).

“Value”. Section 1-201(44).


§ 28:2A-211. Warranties against interference and against infringement; lessee’s obligation against infringement.

(a) There is in a lease contract a warranty that for the lease term no person holds a claim to or interest in the goods that arose from an act or omission of the lessor, other than a claim by way of infringement or the like, which will interfere with the lessee’s enjoyment of its leasehold interest.

(b) Except in a finance lease there is in a lease contract by a lessor who is a merchant regularly dealing in goods of the kind a warranty that the goods are delivered free of the rightful claim of any person by way of infringement or the like.

(c) A lessee who furnishes specifications to a lessor or a supplier shall hold the lessor and the supplier harmless against any claim by way of infringement or the like that arises out of compliance with the specifications.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-211.

Section References

This section is referenced in § 28:2A-214 and § 28:2A-516.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-312.

Changes: This section is modeled on the provisions of Section 2-312, with modifications to reflect the limited interest transferred by a lease contract and the total interest transferred by a sale. Section 2-312(2), which is omitted here, is incorporated in Section 2A-214. The warranty of quiet possession was abolished with respect to sales of goods. Section 2-312 official comment 1. Section 2A-211(1) reinstates the warranty of quiet possession with respect to leases. Inherent in the nature of the limited interest transferred by the lease—the right to possession and use of the goods—is the need of the lessee for protection greater than that afforded to the buyer. Since the scope of the protection is limited to claims or interests that arose from acts or omissions of the lessor, the lessor will be in position to evaluate the potential cost, certainly a far better position than that enjoyed by the lessee. Further, to the extent the market will allow, the lessor can attempt to pass on the anticipated additional cost to the lessee in the guise of higher rent.

Purposes: General language was chosen for subsection (1) that expresses the essence of the lessee’s expectation: with an exception for infringement and the like, no person holding a claim or interest that arose from an act or omission of the lessor will be able to interfere with the lessee’s use and enjoyment of the goods for the lease term. Subsection (2), like other similar provisions in later sections, excludes the finance lessor from extending this warranty; with few exceptions (Sections 2A-210 and 2A-211(1)), the lessee under a finance lease is to look to the supplier for warranties and the like or, in some cases as to warranties, to the manufacturer if a warranty made by that person is passed on. Subsections (2) and (3) are derived from Section 2-312(3). These subsections, as well as the analogue, should be construed so that applicable principles of law and equity supplement their provisions. Sections 2A-103(4) and 1-103.

Cross References:Sections 2-312, 2-312(1), 2-312(2), 2-312 official comment 1, 2A-210, 2A-211(1) and 2A-214.

Definitional Cross References: “Delivery”. Section 1-201(14).

“Finance lease”. Section 2A-103(1)(g).

“Goods”. Section 2A-103(1)(h).

“Lease”. Section 2A-103(1)(j).

“Lease contract”. Section 2A-103(1)(l).

“Leasehold interest”. Section 2A-103(1)(m).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).

“Merchant”. Section 2-104(1).

“Person”. Section 1-201(30).

“Supplier”. Section 2A-103(1)(x).


§ 28:2A-212. Implied warranty of merchantability.

(a) Except in a finance lease, a warranty that the goods will be merchantable is implied in a lease contract if the lessor is a merchant with respect to goods of that kind.

(b) Goods to be merchantable must:

(1) Pass without objection in the trade under the description in the lease agreement;

(2) In the case of fungible goods, be of fair average quality within the description;

(3) Be fit for the ordinary purposes for which goods of that type are used;

(4) Run, within the variation permitted by the lease agreement, of even kind, quality, and quantity within each unit and among all units involved;

(5) Be adequately contained, packaged, and labeled as the lease agreement may require; and

(6) Conform to any promises or affirmations of fact made on the container or label.

(c) Other implied warranties may arise from course of dealing or usage of trade.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-212.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-314.

Changes: Revised to reflect leasing practices and terminology. E.g., Glenn Dick Equip. Co. v. Galey Constr., Inc., 97 Idaho 216, 225, 541 P.2d 1184, 1193 (1975) (implied warranty of merchantability (Article 2) extends to lease transactions).

Definitional Cross References: “Conforming”. Section 2A-103(1)(d).

“Course of dealing”. Section 1-205.

“Finance lease”. Section 2A-103(1)(g).

“Fungible”. Section 1-201(17).

“Goods”. Section 2A-103(1)(h).

“Lease agreement”. Section 2A-103(1)(k).

“Lease contract”. Section 2A-103(1)(l).

“Lessor”. Section 2A-103(1)(p).

“Merchant”. Section 2-104(1).

“Usage of trade”. Section 1-205.


§ 28:2A-213. Implied warranty of fitness for particular purpose.

Except in a finance lease, if the lessor at the time the lease contract is made has reason to know of any particular purpose for which the goods are required and that the lessee is relying on the lessor’s skill or judgment to select or furnish suitable goods, there is in the lease contract an implied warranty that the goods will be fit for that purpose.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-213.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-315.

Changes: Revised to reflect leasing practices and terminology. E.g., All-States Leasing Co. v. Bass, 96 Idaho 873, 879, 538 P.2d 1177, 1183 (1975) (implied warranty of fitness for a particular purpose (Article 2) extends to lease transactions).

Definitional Cross References: “Finance lease”. Section 2A-103(1)(g).

“Goods”. Section 2A-103(1)(h).

“Knows”. Section 1-201(25).

“Lease contract”. Section 2A-103(1)(l).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).


§ 28:2A-214. Exclusion or modification of warranties.

(a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit a warranty must be construed wherever reasonable as consistent with each other; but, subject to the provisions of § 28:2A-202 on parol or extrinsic evidence, negation or limitation is inoperative to the extent that the construction is unreasonable.

(b) Subject to subsection (c) of this section, to exclude or modify the implied warranty of merchantability or any part of it the language must mention “merchantability”, be by a writing, and be conspicuous. Subject to subsection (c) of this section, to exclude or modify any implied warranty of fitness the exclusion must be by a writing and be conspicuous. Language to exclude all implied warranties of fitness is sufficient if it is in writing, is conspicuous and states, for example, “There is no warranty that the goods will be fit for a particular purpose”.

(c) Notwithstanding subsection (b) of this section, but subject to subsection (d) of this section:

(1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is,” or “with all faults,” or by other language that in common understanding calls the lessee’s attention to the exclusion of warranties and makes plain that there is no implied warranty, if in writing and conspicuous;

(2) if the lessee before entering into the lease contract has examined the goods or the sample or model as fully as desired or has refused to examine the goods, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed; and

(3) an implied warranty may also be excluded or modified by course of dealing, course of performance, or usage of trade.

(d) To exclude or modify a warranty against interference or against infringement (§ 28:2A-211) or any part of it, the language must be specific, be by a writing, and be conspicuous, unless the circumstances, including course of performance, course of dealing, or usage of trade, give the lessee reason to know that the goods are being leased subject to a claim or interest of any person.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830; Apr. 9, 1997, D.C. Law 11-255, § 27(pp), 44 DCR 1271.)

Prior Codifications

1981 Ed., § 28:2A-214.

Uniform Commercial Code Comment

Uniform Statutory Source:Sections 2-316 and 2-312(2).

Changes: Subsection (2) requires that a disclaimer of the warranty of merchantability be conspicuous and in writing as is the case for a disclaimer of the warranty of fitness; this is contrary to the rule stated in Section 2-316(2) with respect to the disclaimer of the warranty of merchantability. This section also provides that to exclude or modify the implied warranty of merchantability, fitness or against interference or infringement the language must be in writing and conspicuous. There are, however, exceptions to the rule. E.g., course of dealing, course of performance, or usage of trade may exclude or modify an implied warranty. Section 2A-214(3)(c). The analogue of Section 2-312(2) has been moved to subsection (4) of this section for a more unified treatment of disclaimers; there is no policy with respect to leases of goods that would justify continuing certain distinctions found in the Article on Sales (Article 2) regarding the treatment of the disclaimer of various warranties. Compare Sections 2-312(2) and 2-316(2). Finally, the example of a disclaimer of the implied warranty of fitness stated in subsection (2) differs from the analogue stated in Section 2-316(2); this example should promote a better understanding of the effect of the disclaimer.

Purposes: These changes were made to reflect leasing practices. E.g., FMC Finance Corp. v. Murphree, 632 F.2d 413, 418 (5th Cir.1980) (disclaimer of implied warranty under lease transactions must be conspicuous and in writing). The omission of the provisions of Section 2-316(4) was not substantive. Sections 2A-503 and 2A-504.

Cross References: Article 2, esp. Sections 2-312(2) and 2-316, and Sections 2A-503 and 2A-504.

Definitional Cross References: “Conspicuous”. Section 1-201(10).

“Course of dealing”. Section 1-205.

“Fault”. Section 2A-103(1)(f).

“Goods”. Section 2A-103(1)(h).

“Knows”. Section 1-201(25).

“Lease”. Section 2A-103(1)(j).

“Lease contract”. Section 2A-103(1)(l).

“Lessee”. Section 2A-103(1)(n).

“Person”. Section 1-201(30).

“Usage of trade”. Section 1-205.

“Writing”. Section 1-201(46).


§ 28:2A-215. Cumulation and conflict of warranties express or implied.

Warranties, whether express or implied, must be construed as consistent with each other and as cumulative, but if that construction is unreasonable, the intention of the parties determines which warranty is dominant. In ascertaining that intention the following rules apply:

(1) Exact or technical specifications displace an inconsistent sample or model or general language of description.

(2) A sample from an existing bulk displaces inconsistent general language of description.

(3) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-215.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-317.

Definitional Cross Reference: “Party”. Section 1-201(29).


§ 28:2A-216. Third party beneficiaries of express and implied warranties.

A warranty to or for the benefit of a lessee under this article, whether express or implied, extends to any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of the warranty. The operation of this section may not be excluded, modified, or limited with respect to injury to the person of an individual to whom the warranty extends, but an exclusion, modification, or limitation of the warranty, including any with respect to rights and remedies, effective against the lessee is also effective against the beneficiary designated under this section.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-216.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-318.

Changes: The provisions of Section 2-318 have been included in this section, modified in two respects: first, to reflect leasing practice, including the special practices of the lessor under a finance lease; second, to reflect and thus codify elements of the official comment to Section 2-318 with respect to the effect of disclaimers and limitations of remedies against third parties.

Purposes: [Mississippi has adopted Alternative A.]. Alternative A is based on the 1962 version of Section 2-318 and is least favorable to the injured person as the doctrine of privity imposed by other law is abrogated to only a limited extent. Alternatives B and C are based on later additions to Section 2-318 and are more favorable to the injured person. In determining which alternative to select, the state legislature should consider making its choice parallel to the choice it made with respect to Section 2-318, as interpreted by the courts.

The last sentence of each of Alternatives A, B and C does not preclude the lessor from excluding or modifying an express or implied warranty under a lease. Section 2A-214. Further, that sentence does not preclude the lessor from limiting the rights and remedies of the lessee and from liquidating damages. Sections 2A-503 and 2A-504. If the lease excludes or modifies warranties, limits remedies for breach, or liquidates damages with respect to the lessee, such provisions are enforceable against the beneficiaries designated under this section. However, this last sentence forbids selective discrimination against the beneficiaries designated under this section, i.e., exclusion of the lessor’s liability to the beneficiaries with respect to warranties made by the lessor to the lessee.

Other law, including the Article on Sales (Article 2), may apply in determining the extent to which a warranty to or for the benefit of the lessor extends to the lessee and third parties. This is in part a function of whether the lessor has bought or leased the goods.

This Article does not purport to change the development of the relationship of the common law, with respect to products liability, including strict liability in tort (as restated in Restatement (Second) of Torts, s 402A (1965)), to the provisions of this Act. Compare Cline v. Prowler Indus. of Maryland, 418 A.2d 968 (Del.1980) and Hawkins Constr. Co. v. Matthews Co., 190 Neb. 546, 209 N.W.2d 643 (1973) with Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967).

Cross References: Article 2, esp. Section 2-318, and Sections 2A-214, 2A-503 and 2A-504.

Definitional Cross References: “Goods”. Section 2A-103(1)(h).

“Lessee”. Section 2A-103(1)(n).

“Person”. Section 1-201(30).

“Remedy”. Section 1-201(34).

“Rights”. Section 1-201(36).

HISTORICAL NOTES


§ 28:2A-217. Identification.

Identification of goods as goods to which a lease contract refers may be made at any time and in any manner explicitly agreed to by the parties. In the absence of explicit agreement, identification occurs:

(1) When the lease contract is made if the lease contract is for a lease of goods that are existing and identified;

(2) When the goods are shipped, marked, or otherwise designated by the lessor as goods to which the lease contract refers, if the lease contract is for a lease of goods that are not existing and identified; or

(3) When the young are conceived, if the lease contract is for a lease of unborn young of animals.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-217.

Section References

This section is referenced in § 28:2A-522.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-501.

Changes: This section, together with Section 2A-218, is derived from the provisions of Section 2-501, with changes to reflect lease terminology; however, this section omits as irrelevant to leasing practice the treatment of special property.

Purposes: With respect to subsection (b) there is a certain amount of ambiguity in the reference to when goods are designated, e.g., when the lessor is both selling and leasing goods to the same lessee/buyer and has marked goods for delivery but has not distinguished between those related to the lease contract and those related to the sales contract. As in Section 2-501(1)(b), this issue has been left to be resolved by the courts, case by case.

Cross References:Sections 2-501 and 2A-218.

Definitional Cross References: “Agreement”. Section 1-201(3).

“Goods”. Section 2A-103(1)(h).

“Lease”. Section 2A-103(1)(j).

“Lease contract”. Section 2A-103(1)(l).

“Lessor”. Section 2A-103(1)(p).

“Party”. Section 1-201(29).


§ 28:2A-218. Insurance and proceeds.

(a) A lessee obtains an insurable interest when existing goods are identified to the lease contract even though the goods identified are nonconforming and the lessee has an option to reject them.

(b) If a lessee has an insurable interest only by reason of the lessor’s identification of the goods, the lessor, until default or insolvency or notification to the lessee that identification is final, may substitute other goods for those identified.

(c) Notwithstanding a lessee’s insurable interest under subsections (a) and (b) of this section, the lessor retains an insurable interest until an option to buy has been exercised by the lessee and risk of loss has passed to the lessee.

(d) Nothing in this section impairs any insurable interest recognized under any other statute or rule of law.

(e) The parties by agreement may determine that one or more parties have an obligation to obtain and pay for insurance covering the goods and by agreement may determine the beneficiary of the proceeds of the insurance.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-218.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-501.

Changes: This section, together with Section 2A-217, is derived from the provisions of Section 2-501, with changes and additions to reflect leasing practices and terminology.

Purposes: Subsection (2) states a rule allowing substitution of goods by the lessor under certain circumstances, until default or insolvency of the lessor, or until notification to the lessee that identification is final. Subsection (3) states a rule regarding the lessor’s insurable interest that, by virtue of the difference between a sale and a lease, necessarily is different from the rule stated in Section 2-501(2) regarding the seller’s insurable interest. For this purpose the option to buy shall be deemed to have been exercised by the lessee when the resulting sale is closed, not when the lessee gives notice to the lessor. Further, subsection (5) is new and reflects the common practice of shifting the responsibility and cost of insuring the goods between the parties to the lease transaction.

Cross References:Sections 2-501, 2-501(2) and 2A-217.

Definitional Cross References: “Agreement”. Section 1-201(3).

“Buying”. Section 2A-103(1)(a).

“Conforming”. Section 2A-103(1)(d).

“Goods”. Section 2A-103(1)(h).

“Insolvent”. Section 1-201(23).

“Lease contract”. Section 2A-103(1)(l).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).

“Notification”. Section 1-201(26).

“Party”. Section 1-201(29).

HISTORICAL NOTES


§ 28:2A-219. Risk of loss.

(a) Except in the case of a finance lease, risk of loss is retained by the lessor and does not pass to the lessee. In the case of a finance lease, risk of loss passes to the lessee.

(b) Subject to the provisions of this article on the effect of default on risk of loss (§ 28:2A-220), if risk of loss is to pass to the lessee and the time of passage is not stated, the following rules apply:

(1) If the lease contract requires or authorizes the goods to be shipped by carrier

(A) And it does not require delivery at a particular destination, the risk of loss passes to the lessee when the goods are duly delivered to the carrier; but

(B) If it does require delivery at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the lessee when the goods are there duly so tendered as to enable the lessee to take delivery.

(2) If the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the lessee on acknowledgment by the bailee of the lessee’s right to possession of the goods.

(3) In any case not within paragraph (1) or (2) of this subsection, the risk of loss passes to the lessee on the lessee’s receipt of the goods if the lessor, or, in the case of a finance lease, the supplier, is a merchant; otherwise the risk passes to the lessee on tender of delivery.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-219.

Section References

This section is referenced in § 28:2A-221 and § 28:2A-529.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-509(1) through (3).

Changes: Subsection (1) is new. The introduction to subsection (2) is new, but subparagraph (a) incorporates the provisions of Section 2-509(1); subparagraph (b) incorporates the provisions of Section 2-509(2) only in part, reflecting current practice in lease transactions.

Purposes: Subsection (1) states rules related to retention or passage of risk of loss consistent with current practice in lease transactions. The provisions of subsection (4) of Section 2-509 are not incorporated as they are not necessary. This section does not deal with responsibility for loss caused by the wrongful act of either the lesser or the lessee.

Cross References:Sections 2-509(1), 2-509(2) and 2-509(4).

Definitional Cross References: “Delivery”. Section 1-201(14).

“Finance lease”. Section 2A-103(1)(g).

“Goods”. Section 2A-103(1)(h).

“Lease contract”. Section 2A-103(1)(l).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).

“Merchant”. Section 2-104(1).

“Receipt”. Section 2-103(1)(c).

“Rights”. Section 1-201(36).

“Supplier”. Section 2A-103(1)(x).


§ 28:2A-220. Effect of default on risk of loss.

(a) Where risk of loss is to pass to the lessee and the time of passage is not stated:

(1) If a tender or delivery of goods so fails to conform to the lease contract as to give a right of rejection, the risk of their loss remains with the lessor, or, in the case of a finance lease, the supplier, until cure or acceptance.

(2) If the lessee rightfully revokes acceptance, he or she, to the extent of any deficiency in his or her effective insurance coverage, may treat the risk of loss as having remained with the lessor from the beginning.

(b) Whether or not risk of loss is to pass to the lessee, if the lessee as to conforming goods already identified to a lease contract repudiates or is otherwise in default under the lease contract, the lessor, or, in the case of a finance lease, the supplier, to the extent of any deficiency in his or her effective insurance coverage may treat the risk of loss as resting on the lessee for a commercially reasonable time.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-220.

Section References

This section is referenced in § 28:2A-219.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-510.

Changes: Revised to reflect leasing practices and terminology. The rule in Section (1)(b) does not allow the lessee under a finance lease to treat the risk of loss as having remained with the supplier from the beginning. This is appropriate given the limited circumstances under which the lessee under a finance lease is allowed to revoke acceptance. Section 2A-517 and Section 2A-516 official comment.

Definitional Cross References: “Conforming”. Section 2A-103(1)(d).

“Delivery”. Section 1-201(14).

“Finance lease”. Section 2A-103(1)(g).

“Goods”. Section 2A-103(1)(h).

“Lease contract”. Section 2A-103(1)(l).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).

“Reasonable time”. Section 1-204(1) and (2).

“Rights”. Section 1-201(36).

“Supplier”. Section 2A-103(1)(x).


§ 28:2A-221. Casualty to identified goods.

If a lease contract requires goods identified when the lease contract is made, and the goods suffer casualty without fault of the lessee, the lessor, or the supplier before delivery, or the goods suffer casualty before risk of loss passes to the lessee pursuant to the lease agreement or § 28:2A-219, then:

(1) If the loss is total, the lease contract is avoided; and

(2) If the loss is partial or the goods have so deteriorated as to no longer conform to the lease contract, the lessee may nevertheless demand inspection and at his or her option either treat the lease contract as avoided or, except in a finance lease that is not a consumer lease, accept the goods with due allowance from the rent payable for the balance of the lease term for the deterioration or the deficiency in quantity but without further right against the lessor.


(July 22, 1992, D.C. Law 9-128, § 2(b), 39 DCR 3830.)

Prior Codifications

1981 Ed., § 28:2A-221.

Uniform Commercial Code Comment

Uniform Statutory Source:Section 2-613.

Changes: Revised to reflect leasing practices and terminology. Purpose: Due to the vagaries of determining the amount of due allowance ( Section 2-613(b), no attempt was made in subsection (b) to treat a problem unique to lease contracts and installment sales contracts: determining how to recapture the allowance, e.g., application to the first or last rent payments or allocation, pro rata, to all rent payments.

Cross References:Section 2-613.

Definitional Cross References: “Conforming”. Section 2A-103(1)(d).

“Consumer lease”. Section 2A-103(1)(e).

“Delivery”. Section 1-201(14).

“Fault”. Section 2A-103(1)(f).

“Finance lease”. Section 2A-103(1)(g).

“Goods”. Section 2A-103(1)(h).

“Lease”. Section 2A-103(1)(j).

“Lease agreement”. Section 2A-103(1)(k).

“Lease contract”. Section 2A-193(1)(l).

“Lessee”. Section 2A-103(1)(n).

“Lessor”. Section 2A-103(1)(p).

“Rights”. Section 1-201(36).

“Supplier”. Section 2A-103(1)(x).