Here is the repost so that I can earn my fee!! Thanks so very much
for visiting us.
weisstho-ga
You inquiry almost sounds like a question posed in a business law
class, and particularly posed to have the student think about whether
the Uniform Commercial Code is applicable in a case concerning a
restaurant.
Would you please indicate the context of your question?
BUT, IF THE FOLLOWING IS ADEQUATE, PLEASE INDICATE AND I WILL REPOST
IT AS AN ANSWER. . .
A short answer, a $2.00 answer, would go something like this:
The food served in a restaurant is a "good" as that term is defined in
the Uniform Commercial Code. The conditions of sale, and most
importantly the UCC warranties would apply to the sale of food.
Services would encompass the delivery of the food.
Where the goods and services are mixed, the question of which part of
the equation predominates is then analyzed, using the standard
enunciated in the seminal case, Bonebrake v. Cox , 499 F.2d 951, 960
(8th Cir. 1974).
The Bonebrake test: where the Eighth Circuit Court of Appeals held
that the UCC applied to a hybrid transaction even though it involved a
substantial amount of services in installation of the goods; ?the fact
that the contract involved substantial amounts of labor does not
remove it from inclusion under the Code.? Bonebrake v Cox, 499 F2d
951, 959 (CA 8, 1974). The test articulated in Bonebrake has become
legend:
The test for inclusion or exclusion is not whether they are mixed,
but, granting that they are mixed, whether their predominant factor,
their thrust, their purpose, reasonably stated, is the rendition of
service, with goods incidentally involved (e.g., contract with artist
for painting) or is a transaction of sale, with labor incidentally
involved (e.g. installation of a water heater in a bathroom).
Neibarger, 439 Mich at 534, citing Bonebrake, 499 F 2d at 960.
The Neibarger court provided further guidance:
It is difficult to imagine a commercial product which does not require
some type of service prior to its purchase, whether design, assembly,
installation, or manufacture. If a purchaser were able to avoid the
UCC by pleading negligent execution of one of the services required to
produce the product, Article 2 could be easily and effectively
negated. A court faced with this issue should examine the purpose of
the dealings between the parties. If the purchaser's ultimate goal is
to acquire a product, the contract should be considered a transaction
in goods, even though service is incidentally required. Conversely, if
the purchaser's ultimate goal is to procure a service, the contract is
not governed by the UCC, even though goods are incidentally required
in the provision of this service.
Neibarger, 439 Mich at 536 (emphasis added).
The premises itself are property - either real property to the
permanent aspects (land and building)
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