South Dakota Codified Laws 57A-2A-405. Excused performance
Subject to § 57A-2A-404, on substituted performance, the following rules apply:
(a) Delay in delivery or nondelivery in whole or in part by a lessor or a supplier who complies with subsections (b) and (c) of this section is not a default under the lease contract if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the lease contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order, whether or not the regulation or order later proves to be invalid.
Terms Used In South Dakota Codified Laws 57A-2A-405
- Contract: A legal written agreement that becomes binding when signed.
- Finance lease: means a lease in which (i) the lessor does not select, manufacture or supply the goods, (ii) the lessor acquires the goods or the right to possession and use of the goods in connection with the lease, and (iii) either (A) the lessee receives a copy of the contract evidencing the lessor's purchase of the goods on or before signing the lease contract, (B) the lessee's approval of the contract evidencing the lessor's purchase of the goods is a condition to effectiveness of the lease contract, (C) the lessor (aa) informs the lessee in writing of the identity of the supplier unless the lessee has selected the supplier and directed the lessor to purchase the goods from the supplier, (bb) informs the lessee in writing that the lessee may have rights under the contract evidencing the lessor's purchase of the goods, and (cc) advises the lessee in writing to contact the supplier for a description of any such rights, or (D) the lease contract discloses all warranties and other rights provided to the lessee by the lessor and supplier in connection with the lease contract and informs the lessee that there are no warranties or other rights provided to the lessee by the lessor and supplier other than those disclosed in the lease contract. See South Dakota Codified Laws 57A-2A-103
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Lease: means a transfer of the right to possession and use of goods for a term in return for consideration, but a sale, including a sale on approval or a sale or return, or retention or creation of a security interest is not a lease. See South Dakota Codified Laws 57A-2A-103
- Lessee: means a person who acquires the right to possession and use of goods under a lease. See South Dakota Codified Laws 57A-2A-103
- Lessor: means a person who transfers the right to possession and use of goods under a lease. See South Dakota Codified Laws 57A-2A-103
- Supplier: means a person from whom a lessor buys or leases goods to be leased under a finance lease. See South Dakota Codified Laws 57A-2A-103
(b) If the causes mentioned in subsection (a) of this section affect only part of the lessor’s or the supplier’s capacity to perform, he shall allocate production and deliveries among his customers but at his option may include regular customers not then under contract for sale or lease as well as his own requirements for further manufacture. He may so allocate in any manner that is fair and reasonable.
(c) The lessor seasonably shall notify the lessee and in the case of a finance lease, the supplier seasonably shall notify the lessor and the lessee, if known, that there will be delay or nondelivery and, if allocation is required under subsection (b) of this section, of the estimated quota thus made available for the lessee.
Source: SL 1989, ch 419, § 1.