## Facts

- Multiplastics agreed to manufacture and supply Arch 40,000 pounds of specially manufactured brown polystyrene pellets at $0.19 per pound.
- Arch was to accept delivery at a rate of 1,000 pounds per day after production was completed.
- Multiplastics completed production within about two weeks and requested Arch’s shipping/release instructions.
- Arch did not provide release orders, citing labor issues and a vacation schedule.
- On August 18, 1971, Multiplastics sent a letter stating it had produced and warehoused the pellets for more than forty days, could not warehouse indefinitely, and requested shipping instructions.
- Multiplastics made repeated follow-up calls seeking payment and delivery instructions.
- Beginning August 20, 1971, Arch stated it would issue release orders but never did.
- On September 22, 1971, a fire destroyed Multiplastics’ plant and the pellets intended for Arch; Multiplastics’ insurance did not cover the pellets.
- Multiplastics sued for the contract price, asserting a valid tender, Arch’s breach by refusal to accept, and risk of loss on Arch under the UCC.

## Issues

1. Whether Multiplastics made a valid tender of delivery and whether Arch repudiated/breached by failing to accept and provide release instructions.
2. Whether, under Conn. Gen. Stat. § 42a-2-510(3) (UCC § 2-510(3)), Multiplastics could treat the risk of loss as resting on Arch for a commercially reasonable time after Arch’s breach.
3. Whether the notation “make and hold for release. Confirmation.” in Arch’s confirming order altered the parties’ contract obligations regarding tender, delivery timing, or risk of loss.
4. Whether the time from Arch’s breach to the fire (approximately August 20 to September 22, 1971) was a commercially reasonable period for shifting risk of loss to Arch.

## Decision

- The Connecticut Supreme Court affirmed judgment for Multiplastics.
- The August 18 letter and related efforts to obtain shipping instructions constituted a valid tender of delivery.
- Arch repudiated and breached the contract by refusing to accept conforming goods and failing to issue release orders after promising to do so.
- Under § 42a-2-510(3), Multiplastics could treat the risk of loss as resting on Arch for a commercially reasonable time after breach; the roughly 33-day period before the fire was not commercially unreasonable.
- The “make and hold for release” notation was not established as a contract term that excused Arch’s nonacceptance or altered the risk allocation.

## Legal Principles

- A seller may tender delivery by giving clear notice that conforming goods are ready and requesting necessary shipping instructions when delivery requires buyer cooperation.
- A buyer’s refusal to accept conforming goods when due constitutes breach/repudiation under UCC Article 2.
- Under UCC § 2-510(3), when a buyer repudiates or breaches before risk of loss passes, and the seller holds conforming goods, the seller may treat risk of loss as resting on the buyer for a commercially reasonable time, to the extent of the seller’s ineffective insurance coverage.
- Risk of loss under the UCC is allocated by Article 2 provisions and is not determined by “title.”
- A term appearing on a confirming form affects the agreement only if it is shown to be part of the parties’ contract; otherwise it does not alter tender, delivery obligations, or risk allocation.

## Conclusion

The court held that Multiplastics validly tendered specially manufactured conforming goods and that Arch’s failure to provide release instructions constituted a breach, allowing Multiplastics under UCC § 2-510(3) to place the risk of fire loss on Arch for a commercially reasonable period after breach and recover the contract price.


Multiplastics, Inc. v. Arch Indus., Inc., 166 Conn. 280, 348 A.2d 618 (Conn. 1974)