Seller Unable to Repair Defective Product Remedy
When a limitation of remedies that would exclude revocation of acceptance fails of its essential purpose, the buyer is entitled to employ the remedy of revocation of acceptance.
When the seller cannot cure the defects by repeated attempts to repair, a limitation of remedy to repair fails of its essential purpose and the buyer is then free to revoke acceptance of the goods. Ronald A. Anderson, Uniform Commercial Code 2-608:13 (3d ed. 1997);
see also Fode v. Capital RV Center, Inc., 1998 ND 65, 575 N.W.2d 682 (N.D. 1998); Murray v. D & J Motor Co., 1998 OK CIV APP 69, 958 P.2d 823 (Okla. App. 1998);
James J. White & Robert S. Summers, Uniform Commercial Code 12-10 (4th ed. 1995);
cf., Cooley v. Big Horn Harvestore Systems, Inc., 813 P.2d 736 (Colo. 1991) (where purchase agreement establishes that only warranty is to repair or replace defective parts and contains no unambiguous provision reflecting parties' intent to preclude recovery of consequential damages even when sole remedy fails of its essential purpose, consequential damages remedy remains viable notwithstanding contract disclaimer).