Substituted performance

84-2-614. Substituted performance. (1) Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted. (2) If the agreed means or manner of payment fails because of domestic or foreign governmental regulation, the seller may withhold or stop delivery unless the buyer provides a means or manner of payment which is commercially a substantial equivalent. If delivery has already been taken, payment by the means or in the manner provided by the regulation discharges the buyer's obligation unless the regulation is discriminatory, oppressive or predatory. History: L. 1965, ch. 564, § 94; January 1, 1966. KANSAS COMMENT, 1996 This section deals with contingencies that render impossible or impracticable not the performance of the contract itself, but the means of performance. In contrast with sections 84-2-613 and 84-2-615, the failures dealt with by this section do not go to the heart of the agreement, but rather deal with incidental matters, such as the manner of delivery or payment. Under this section, failure of these "incidental" matters does not excuse performance by either party. Instead, a substituted performance must be tendered and accepted. Subsection (1) applies in cases involving failure of the agreed manner of transportation; subsection (2) applies to the failure of the agreed manner of payment because of domestic or foreign regulation.