Example of Court Annexed Arbitration Opinion: Nine
      Yesterday I had the pleasure to serve as arbitrator in your case, involving the purchase and sale of a [brandname]  tractor.  Hardheadedness in business relationships often serve the aggregate goals of each side, but occasionally, may get in the way of pragmatic resolution of a dispute.  Sometimes reasonableness is in the eye of the beholder.  Where reasonable people can differ, and the beholder is the arbitrator, at least two things can happen: It will be expensive for both sides, and, one or maybe both sides will find out that the arbitrator sees it differently.  As always, there are three truths, one for each side and one for me.  In this case, I don’t find that either side was grossly unreasonable or unrealistic, but, sometimes I only have to be 51% convinced to send the case in one or another direction which can have black or white effects further up (or down) the decision tree.  And, unfortunately, it costs proportionately more to litigate a dispute involving a $13,500 tractor as a dispute involving ten times a much.

    So here are the players / witnesses:

    Plaintiff is a property owner / real estate broker.

    Defendant is an Oregon corporation, operating out of Southern Oregon.  Personifying Defendant is its president.  Plaintiff purchased a tractor from Defendant.  The sale was arranged by the sales manager, and the tractor was delivered by an independent contractor.

    Here are the claims in the pleadings.  In his amended complaint, plaintiff alleges:

‒    in his first claim for relief, first count, that the tractor was non-conforming and he rightfully rejected it, that he can cancel the sale and recover his purchase price, and have a lien on the tractor for the amount he spent to preserve it,
‒    in his first claim for relief, second count, that he revoked acceptance,
‒    in his first claim for relief, third count, for breach express warranty,
‒    in his first claim for relief, fourth count, for breach of the implied warranty of merchantability,
‒    in his first claim for relief, fifth count, for breach of the implied warranty of fitness for a particular purpose,
‒    in his first claim for relief, sixth count, for failure of an essential purpose, and
‒    in his first claim for relief, seventh count, for cancellation and damages under the Magnuson Moss Warranty Act.

    Defendant admitted that it is in the business of making sales of tractors, and that under the MMWA the tractor was a consumer product, that Plaintiff is a consumer, and that Defendant is a supplier.

    Defendant alleged as affirmative defenses that:

‒    there were no warranties, and
‒    that it limited the warranties available.

    Both sides claim their reasonable attorney fees.

    Here is what happened, as I see it:

    Defendant is in the business of distributing tractors, including the [] brand.  It is undisputed that [] tractors are a relatively inexpensive line of [non US manufacture] tractors with more basic features.  They are full size tractors, but more appropriate for 2 to 5 acre parcels than for larger scale agricultural or construction operations.  It was alleged that [] tractors are a consumer product, and Defendant admitted that allegation.  Furthermore, defendant's president so testified.  Independently of the admission in the answer, having in mind Crume v. Ford Motor Co., 60 Or App 224, 653 P2d 564 (1982), I find that the [] tractor involved in this case is a consumer product as defined in the MMWA.

    The tractor is also ‘goods’ under Oregon’s Uniform Commercial Code.

    Defendant is an internet based business, selling new tractors all over the world, with a real bricks and mortar site in [Southern] Oregon.  Internet communications and advertising do not change the legal principles involved.  It is undisputed, and consistent with my experience in purchasing other kinds of used equipment I find that, trying to find a good condition used tractor is a crap shoot.

    Plaintiff was looking for a tractor mainly to use on his 2 ½ acre property in SW Portland.  He had looked at used tractors, but was also shopping the internet for a good deal on a new tractor, and ended up communicating with [the sales manager] at Defendant.  [Sales Manager] testified that [plaintiff]also said that he wanted to use the tractor on his real estate projects.  I’m inclined to credit plaintiff over the sales manager on this point, but it does not matter, because the commercial / personal use of the tractor does not matter under the the UCC, and under the MMWA, the question is not how the buyer will use the goods, but rather, objectively whether they are consumer products.

    Regarding the website as the basis for the contract, for warranties, and for limitations of warranty, I view it as background to the transaction, not as constituting the transaction itself.  I view the parol evidence rule as precluding evidence of prior negotiations (to the extent the transaction is evidenced by documents) and the exceptions for fraud and mistake are not implicated by the evidence in this case.  But, most of this transaction was oral, and not evidenced in mutually executed documents.

    There was an attempt at limiting or disclaiming warranties towards the bottom of the “Privacy Policy and Terms” page of the website.  I believe that page was on the website and could have been reached by plaintiff in April 2006, but I also find that he did not go there.  It may be possible for a seller to impose enforceable terms and conditions by stating those on a website, but, in my opinion, a link with the identification “Privacy Policy and Terms” does not achieve that.  Such a link suggests that only terms relating to privacy will be found there.  If Defendant wants a buyer to know the terms of sale, that title is inadequate, regardless of whether it was drafted by someone knowledgeable in website design. 

    Under the UCC, the implied warranties in the sale of goods can be disclaimed, but such disclaimers must be ‘conspicuous.’  Case law suggests that in order for disclaimers to be effective, they need to be called to the attention of the buyer, which can occur in various ways, such as by bold type, capital letters, larger type, placing the disclaimer near the beginning of the contract or near the signature line, requiring the clause to be separately initialed, putting it on a separate piece of paper, etc.  I’m not sure that a disclaimer could be effective if listed on a terms and conditions page on the website in the first place, but, if it can, this one did not meet the conspicuousness requirement in any way.  It is none of my business, but I would recommend at a minimum that the ‘business’ terms and conditions be separated from the ‘privacy’ terms on the web page, and they have separate ‘buttons’ / links.  Even then one could not guarantee enforceability, but, customers who are interested in ‘what the lawyers write’ would be more likely to get there.
    The Sales Manager had apparent, if not actual, authority to act on behalf of Defendant, and his acts and omissions bind Defendant.  Plaintiff and the Sales Manager had several conversations about plaintiff’s intended use.  The Sales Manager steered plaintiff to the particular tractor involved in this case.  That implicates the UCC warranty of fitness for a particular purpose.  Any sale of new goods implicates the UCC warranty of merchantability.  To skip forwards, the invoice also provided a UCC express warranty against defects in manufacturer’s parts - although plaintiff testified that language was not something that was discussed on the phone, and plaintiff did not ask for the invoice.  The Sales Manager did testify that the warranty was discussed on the phone, but I am not entirely inclined to believe the Sales Manager - I don’t think he is willing to acknowledge error.

    The Sales Manager convinced plaintiff that the tractor was suitable for plaintiff’s intended use (and it may have been), and they agreed on a purchase price of $13,500 including delivery.  Plaintiff testified that he and the Sales Manager never discussed warranties and I quote “No, I don’t think we ever did, I just asked him ‘am I going to be happy with this tractor?’” When asked ‘did you discuss what would take place if you were unhappy,’ the answer was ‘no.’

    It is obvious that delivery is not ‘free’ but is simply absorbed into the price.  Plaintiff did not go to defendant's place of business to observe a tractor in operation nor did he arrange to see one in operation elsewhere.  This was in hindsight a mistake.  Plaintiff said that the Sales Manager told him he could try it out when it was delivered.  I’m not sure that Defendant will really deliver a tractor 300 miles away ‘on approval’ but when it was delivered, plaintiff did not try it out before paying for it.  This was with hindsight another mistake, exacerbating the first one.  Whether or not he could have seen one other than in defendant's place of business, no doubt he could have gone there to see one.  I don’t believe that Defendant would or did agree to leave a tractor with a customer to ‘try out.’  When plaintiff was asked whether he thought the delivery was an opportunity to try the tractor out, he also said ‘no.’  Plaintiff testified that he asks himself why he accepted delivery and that he was sure the delivery contractor would have given him more time if he needed it.

    There is nothing that prohibits a consumer from making a large purchase of goods sight unseen, but, it is risky, in light of the utterly clear rule in Oregon that there is no absolute right to rescind a sale of consumer goods based on buyer’s remorse.

    There were discussions between plaintiff and the Sales Manager about when the tractor would be delivered.  Plaintiff did not want the tractor delivered on April 29, 2006 because that was the date of his daughter’s birthday party, and said so.  The Sales Manager wanted to have it delivered that day because he had another tractor going north that day, which was true; there was another tractor delivered in Portland by the delivery contractor that day.  Eventually, the Sales Manager was able to convince plaintiff to accept delivery on April 29, if the tractor would be delivered before 8:00 a.m.  Whatever hind sight tells us about the wisdom of plaintiff’s accession to the Sales Manager’s desires, they made that agreement.

    Defendant does not special order a tractor from overseas for each customer.  Rather, it sells tractors that it has in stock.  The tractors are received, presumably partly broken down, in crates from overseas, and are assembled in defendant's place of business.  The back hoe assembly is a separate product which is added on to the tractors, essentially as an option.  I don’t doubt that normally, each tractor is assembled, and to some degree put through its paces before delivery.  The Sales Manager testified that this tractor was assembled and then assigned to plaintiff.  I don’t question this.  The Sales Manager also testified that this tractor was run for four to five hours in the yard outside the Defendant building.  The tractor has an hours meter.  The testimony is that the hours on the tractor last week was 7.0 and that plaintiff has run the tractor every few months to maintain it, for 2 ½ years.  There was no attempt to impeach plaintiff’s testimony in this regard, and I credit that testimony.  By a preponderance of the evidence, I conclude that this tractor was not run for more than an hour before it was delivered to plaintiff.  My conclusion is not that the Sales Manager is lying, but rather, his testimony is based on what usually happens and what is supposed to happen, not what actually happened.

    The two tractors were loaded onto the delivery contractor’s trailer the evening before.  There was no testimony that the delivery contractor was, or was not, told to get the tractor to plaintiff’s by 8:00 a.m.  Things might have been different had that happened.  There is no evidence that the delivery contractor did anything wrong and generally I credit the delivery contractor’s testimony.  The delivery contractor arrived with the tractor about 11:00 a.m.  This was unfortunate, but standing by itself has no legal effect on anything.  Plaintiff could have waved the delivery contractor off, but he did not.

    When the tractor was loaded on the trailer the day before, the roll bar was folded down.  The tractor was chained down for the trip to Portland.  When the delivery contractor arrived, he could not get his truck and trailer up plaintiff’s driveway.  Therefore, he unloaded the tractor on the road and drove it up the driveway, having no trouble doing so.  Human nature being what it is, the arrival of a tractor created a stir at an eight year old’s birthday party.  I doubt that there was any serious drinking going on, and if there was it would not alter my view of the critical evidence.  I doubt that there was much criticism of plaintiff’s purchase of a foreign manufactured tractor.  What I do think is that plaintiff was distracted and did not pay much attention to an important event and did not want to send the delivery contractor packing with the tractor with the party going on.  Plaintiff had some experience with fork lifts and similar equipment and testified that he is mechanically inclined and perhaps was overconfident, particularly given that the Sales Manager and the delivery contractor made representations that the equipment was easy to operate.  At this point, plaintiff made another mistake.  He gave the delivery contractor the check, thus effectuating a sale.  Plaintiff did not exercise due diligence before he parted with his check.  This was the final event that tilted the economic / legal playing field in favor of Defendant.

    Having accepted the tractor, plaintiff has the burden of proving a breach warranty or entitlement to revoke acceptance (revocation was timely if there was entitlement).  To cut to the chase, plaintiff did not carry his burdens of proof.

    The first next question is whether the tractor has any defects which substantially impair its value.  There are three defects in question, the roll cage, the throttle, and the swing of the bucket.

    At this point, I want to comment on the question, if repairs are to be made, where should that happen?  In my opinion, common expectation is that when you buy something movable, and you want repairs, you bring it back to the place that sold it; they don’t come to you.  That is one of the big weaknesses of buying at low prices from distant sellers as opposed to at higher prices from your corner store, and that is also an obvious economic tradeoff.  The discussions and written materials in this case have to be considered in light of common expectations.

    Also, when a consumer buys a piece of farm equipment, there is a reasonable expectation that the buyer has the repair and maintenance capabilities associated with running a small farm, which usually requires at least a modicum of mechanical ability and a willingness to use it.  I might have made different decisions in this case if plaintiff had attempted some of these repairs and the tractor still did not work (or arranged for repairs to be made and it still did not work).

    As to the roll cage, it is clear that without loosening the bolts at the pivot points, the roll bar ears would not align when delivered.  However, I credit testimony that had the bolts at the pivot points been loosened, the roll bar would have aligned, and this was an easy task.  The testimony of defendant's president, the Sales Manager and the delivery contractor is that the roll bar was up the evening before.  On the delivery contractor’s representation that plaintiff could take care of it later, plaintiff sent the delivery contractor on his way.  By the time plaintiff would have gotten to fixing this problem, he had already decided he did not like the swing action of the bucket and had a problem with the throttle.  He never followed through with resolution of the roll bar.  I find the roll bar was not defective; and, even if it had minor problems, they were repairable with minor effort and did not substantially impair the value of the tractor.

    With regard to the foot throttle, the contention is that the throttle stuck in the full throttle position.  I have had vehicles with throttle problems and I view them as at least potentially serious.  A throttle problem would implicate the warranty of merchantability.  I doubt that Defendant would deliver a tractor with a known defect, and they are not accused of that.  I find that by the time the tractor was delivered it had as much as an hour of operation behind it.  the delivery contractor had no problem driving the tractor up the driveway.  The impression that I have is that the hand throttle overrides the foot throttle.  There is a suggestion that plaintiff did not know how to operate the throttles, though I do not find that as a fact.  Plaintiff got limited instruction from the delivery contractor, but could have gotten more.  The instruction manual was ‘inadequate.’  At the arbitration hearing, no one explained the cause of the throttle problem, and I have the impression no one has actually investigated.  There were a number of conjectures, but conjectures don’t carry the day.  The evidence I am left with is that the throttle stuck, but no explanation of why.  In my opinion, evidence of one event of a problem in operation does not prove a defect by a preponderance of the evidence.  Even if it does, it does not prove a substantial impairment in value without evidence of some effort to identify the cause, an idea of the cost of a fix and whether a fix is certain or uncertain.  As I wrote in my opinion on the motion for summary judgment, I think everything is repairable, and I think this is particularly true with a foreign manufactured steel tractor. 

    With regard to the bucket operation, this implicates both the warranty of fitness for a particular purpose and the warranty of merchantability.  Here, I find as a fact that one of the hallmarks of cheap tractors is ‘rougher’ bucket operation.  I find that the bucket operation was rougher, even much rougher, than plaintiff expected - if he had any expectations before he sat down and operated it.  He also only spent a little time with it, had no instruction, and basically, in my view, was unhappy with his purchase.  This could have been avoided by: going to defendant's place of business rather than buying over the internet; refusing to hand over the check until he had instruction.  There was no independent objective testimony that the operation was defective.  There is no testimony that the operation of this tractor was worse than others.  Understanding the general uniformity of operation of similarly manufactured objects, without specific evidence about this tractor I am not convinced that this tractor’s operation was any different than many others.  In this light, I view the testimony that the bucket operation was ‘wild’ including plaintiff's attorney’s waving arms, as good faith hyperbole.  Thus, I find as a fact or conclusion, whichever, that it is not proved, by a preponderance of the evidence, that the bucket operation violated the warranty of merchantability.  This is a question on which plaintiff has the burden of proof, and the objective evidence does not satisfy the burden.

    There was a concession in the pleadings that the tractor was mis-manufactured.  However, in light of the evidence, I construe that to mean that Defendant had identified a common request from purchasers for a modification to the bucket operation, for which Defendant had developed the fix of replacing the hydraulic flow restrictors with narrower ones.  Simply because a seller has developed a modification to suit the requests of some, even many, purchasers, does not prove that the uncorrected product is not merchantable.

    Proof of breach of warranty of fitness for a particular purpose requires evidence that the buyer’s purpose was communicated to or at least obvious to the seller.  The Sales Manager and plaintiff discussed plaintiff’s needs.  What was proved is those needs were for a tractor to clean up plaintiff’s 2 ½ acre lot, and even possibly to assist in other small real estate clean up projects.  Apparently plaintiff was interested in price.  There is no testimony that plaintiff communicated the need to have an easy operating tractor; likely he did not even know there was a difference.  I find that it is not proved, by a preponderance of the evidence that the bucket operation violated the warranty of fitness for a particular purpose.

    In other words, I do not find a breach of any implied warranty.

    The only express warranty was to replace manufacturer’s defective parts, which stated “All new [] tractors have a full 1 year warranty on manufacturer parts defects.”  If I found that the flow restricters were defective, I would conclude that this language means a ‘full warranty’ on defective parts, and a full warranty might well include the obligation to install as well as replace the defective parts.  If Defendant intends something different, the warranty should be revised, and probably the place for the warranty is not as one line at the bottom of the invoice that is rarely signed by the buyer.  Revision of the warranty materials should take into account the MMWA.  I have held that the flow restricters were not defective.  Even if they were, the remedy for this breach of warranty is not revocation of acceptance.  There is no prohibition on a limitation of a UCC express warranty.  The measure of damages for breach of warranty would be the diminution in value or the cost to cure.  On this point, plaintiff had the burden of proof. There was no evidence of the value of the tractor in its hypothetically defective condition in 2006, or now, nor was there testimony of the labor cost of this proposed repair. 

    Plaintiff’s concerns about liability are not ill founded, and he realistically did not want to do the repairs himself.  However, concerns about liability for repairs are best resolved by obtaining repairs from a reputable repair person.

    Regarding the Magnuson Moss Warranty Act, the gist of the Act is that disclaimers of implied warranties on consumer products are not effective unless an express ‘Full’ or ‘Limited’ warranty is given in compliance with the Act.  While Defendant would be well served on a going forward basis by use of a MMWA compliant Limited Warranty - which might be different for each of their product lines, in my opinion as explained above, Defendant’ attempt to limit its implied warranties was ineffective as a matter of state law.  My finding in favor of Defendant is not based on a disclaimer of warranties, but rather than the warranties were in existence but were not breached.

    To return to the specific claims and counts, and to summarize my holdings:

First claim for relief, first count

    I find that the tractor was not non-conforming, therefore, there was no right to reject.  I also find that the acceptance was complete on April 29.

First claim for relief, second count

    I find that the tractor was not non-conforming, therefore, there was no right to revoke acceptance.

First claim for relief, third count

    “Express warranties are created by affirmations of fact or promises that become "part of the basis of the bargain." ORS 72.3130(1).”  Hanson v. Signer Motors, Inc., 105 Or App 74, 79, 803 P2d 1207 (1990).  However, oral express warranties are not enforcable in sales of goods of a value in excess of $500 except under circumstances not found here.  ORS 72.2010.  I’m not relying on the statute of frauds, just pointing it out.

    I do not find that there were any express warranties, except that there was a one year parts warranty, which was not breached.  Any statement in the negotiations or on the website that any warranty that the product was a ‘quality’ product either was satisfied or is in the nature of puffery and non-actionable.  If the tractor was not ready for immediate use upon delivery, that arises only from the problem with the throttle and there was no evidence of the cost to repair or the diminution in value.

First claim for relief, fourth count

    I found that the tractor was merchantable.

First claim for relief, fifth count

    I found that the tractor met any warranty of fitness for a particular purpose.

First claim for relief, sixth count

    There is no such defense as ‘failure of an essential purpose.’  In the UCC, there is a provision that a limitation of remedy is invalid if it makes the remedy fail its essential purpose, ORS 72.7190(2), Young v. Hessel Tractor & Equipment Co., 99 Or App 262, 782 P2d 164 (1989). but that is not the issue we are dealing with in this case, because insofar as I have concluded that in this case Defendant made and did not effectively limit the implied warranties of merchantability and fitness for a particular purpose, there is no issue of limitation of warranty to consider.

First claim for relief, seventh count

    Title 15, section 2301(6)(b) provides that:

(6) The term "written warranty" means - * * * (B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.

Where Defendant issues the invoice and plaintiff signs it, in my opinion the Invoice just barely meets the requirement of ‘becom[ing] part of the basis of the bargain.’  However, then the question is whether ‘such product fails to meet the specifications set forth in the undertaking,’ and I have found that the tractor was not defective.

    Title 15 section 2310(d) provides for a civil cause of action by a consumer for damages, but, because I have found that Defendant did not breach the warranty I do not have to consider the scope of the remedies available under the MMWA.

Affirmative defense of no warranties

    I reject this defense.

Affirmative defense of limitation of warranty

    I reject this defense.

Attorney fees

    The only basis for award of attorney fees in this case is 15 USC section 2310(d)(2):

(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.

This is not a reciprocal attorney fee provision.  Therefore, neither party is entitled to recover attorney fees.

Cases cited

    I told you that I would consider the cases cited by the parties. 

    I previously considered Kelly v. Olinger.

    Berry v. Lucas, 210 Or App 334, 338, 150 P3d 424 (2006), deals with risk of loss, not an issue in this case.

    Blue Sky Forest Products  v. New Hampshire Doors, 63 Or App 307, 663 P2d 813 (1983), deals with rejection for the wrong reason or based on an inaccurate understanding of the facts.  Again, not an issue in this case.

    Lanners v. Whitney, 247 Or 223, 428 P2d 398 (1967) deals with the right to revoke acceptance.  Among other things, it states “Nevertheless, such acceptance may be revoked where the nonconformity of the goods to the contract substantially impairs the value of the goods to the buyer, if the buyer's acceptance was without discovery of the nonconformity and his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances that the goods conformed to the contract.”  As stated above, I have found that except possibly for the throttle problem the tractor conformed, and as to the throttle problem, it did not (at least it was not proved) substantially impair the value of the tractor.  If I have not expressly stated above, plaintiff’s notice was timely; but he did not have the rights asserted in the notice.

    Can-Key Industries, Inc. v. Industrial Leasing Corp., 286 Or 173, 593 P2d 1125 (1979), deals with what constitutes acceptance.  The facts of that case are different than the instant case.  I find that in the instant case, physical delivery coupled with payment constituted acceptance.  That did not preclude revocation of acceptance; however, I found that the facts in this case did not authorize revocation of acceptance.  That case also dealt with allegations that the purchaser’s use after purported delivery was inconsistent with rejection; however, plaintiff did not use the tractor in any manner inconsistent with rejection.

    In the context of this case, Oregon Lbr. v. Dwyer Overseas Timber Products, 280 Or 437, 571 P2d 884 (1977), deals with the time for revocation of acceptance, which is not an issue in this case.  The same is true of Metro Inv. Corp. v. Portland Rd. Lbr., 263 Or 76, 80, 501 P2d 312 (1972).

    McGinnis v. Wentworth Chevrolet Co., 295 Or 494, 668 P2d 365 (1983), involves the damages available when there is a valid revocation of acceptance, and the question of whether limited use can be a ‘re-acceptance.’  Neither is an issue on the facts of the instant case.

    Valley Iron and Steel v. Thorin, 278 Or 103, 562 P2d 1212 (1977), involves who is a merchant.  In this case, there is no question but that Defendant is a merchant.  It also involves the question of what constitutes breach of the warranty of fitness for a particular purpose.  I found that the tractor did not violate that warranty.

    Hardwick v. Dravo Equipment Company, 279 Or 619, 569 P2d 588 (1977) is cited for the proposition that lost profits can be recovered for breach of warranty.  This was not plead or proved.

    Wadsworth Plumbing v. Tollycraft Corp., 277 Or 433, 560 P2d 1080 (1970), involves whether continued use of goods can constitute an acceptance.  Plaintiff did not continue to use the tractor.  I found his acceptance occurred when he gave money for the tractor and there was no right to revoke acceptance.

    Jorgensen v. Pressnall, 274 Or 285, 545 P2d 1382 (1976), discusses the question of proof of substantial impairment of the value of goods.  As discussed above, I have found that plaintiff did not prove substantial impairment as a question of fact.  Proof of an unrepaired defect was not enough for me.

    Insofar as Melms v. Mitchell, 266 Or 208, 512 P2d 1336 (1973), is relevant, the question was timeliness of revocation of acceptance.  That was not an issue here.

    Claxton v. Boothe, 101 Or App 416, 790 P2d 1201 (1990), involves what constitutes a non-conformity and substantial impairment of value for purposes of summary judgment.  It provides no guidance at trial.

    Young v. Hessel Tractor & Equipment Co., 99 Or App 262, 782 P2d 164 (1989), basically involves remedies where a warranty fails of its essential purpose.  Again, not an issue as I see it.

    Steers Security v. Sportscoach, 99 Or App 363, 781 P2d 1267 (1989), involves what might constitute re-acceptance after revocation of acceptance.  This is not an issue in this case.

    Custom Harv. Oregon v. Smith Truck and Tractor, 75 Or App. 274, 706 P2d 186 (1985), involves what constitutes revocation of acceptance.  I have found that the problem in this case for plaintiff was that there was no right to revoke acceptance.

    Crume v. Ford Motor Co., 60 Or App 224, 653 P2d 564 (1982), was mentioned above.  It also addresses the issue of warranties that fail of their essential purpose.

    Miller v. Hubbard-Wray, 52 Or App 897, 630 P2d 880 (1981), deals with an attempt to disclaim an oral express warranty, as to the age of a piece of farm equipment.  I did not find any express oral warranties.

    Gaha v. Taylor-Johnson Dodge, Inc., 53 Or App 471, 632 P2d 483 (1981), involved revocation of acceptance, but the issues in the case are ones of agency.

    Clark v. Ford Motor Co., 46 Or App 521, 612 P2d 316 (1980), involves an attempt to revoke acceptance in a situation where there were no warranties.  It is inapposite.

    * * *

    After all of this, I think the parties in this case would be well served by reaching some kind of agreement for Defendant to resell this tractor as a ‘nearly new’ tractor on an ‘as-is, where-is’ basis for the account of Plaintiff, and everybody move on with their expensive lessons learned.