Colorado § 4-2-725 - Statute of limitations in contracts for sale.

§ 4-2-725. Statute of limitations in contracts for sale.

(1) An action for breach of any contract for sale must be commenced within the time period prescribed in section 13-80-101, C.R.S. This period of limitation may not be varied by agreement of the parties.

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made; except, that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.

(3) Where an action commenced within the time limited by subsection (1) of this section is so terminated as to leave available a remedy by another action for the same breach, such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.

(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this title becomes effective.

Source: L. 65: p. 1344, § 1. C.R.S. 1963: § 155-2-725. L. 86: (1) amended, p. 702, § 5, effective July 1.

Editor's note - Colorado legislative change: In subsection (1), Colorado substituted the three-year statute of limitations in § 13-80-101 for the four-year statute of limitations in the uniform act. The official text also provided that the parties could reduce the period of limitation to a minimum of one year, but they could not extend the period. Colorado has provided that the period of limitation may not be reduced or extended.

ANNOTATION

Subsection (1) prohibits shortening of limitation period. Avedon Eng'g, Inc. v. Seatex, 112 F. Supp. 2d 1090 (D. Colo. 2000).

Whether arbitration is an "action" subject to limitation period does not control the outcome, if a unilateral term shortening limitation period to one year creates surprise and hardship. Avedon Eng'g, Inc. v. Seatex, 112 F. Supp. 2d 1090 (D. Colo. 2000).

Running of statute of limitations for breach of express warranty. In an explicit warranty of a roof for five years the statute begins to run, not when the first leak is discovered, but when the party discovered or should have discovered that the roofer was unable or unwilling to maintain the roof as warranted. Smith v. Union Supply Co., 675 P.2d 333 (Colo. App. 1983).

Breach defined. When performance of a duty under a contract is due, any non-performance is a breach. D.O.M. Farms v. Nakamoto, 718 P.2d 262 (Colo. App. 1986).

Claims for breach of warranty governed by this section and not former § 13-80-127.5 since such claims are causes of action based upon contract. Ayala v. Joy Mfg. Co., 580 F. Supp. 521 (D. Colo. 1984).

Actions or claims for breach of express and implied warranties under the UCC are governed by this section and not former § 13-80-127.5. Wieser v. Firestone Tire & Rubber Co., 596 F. Supp. 1473 (D. Colo. 1984).

Persons not parties to the sale are still subject to the limitations period of this section. Wieser v. Firestone Tire & Rubber Co., 596 F. Supp. 1473 (D. Colo. 1984); Anderson v. Deere & Co., 622 F. Supp. 290 (D. Colo. 1985).

For the future performance exception of statute to apply, there must be a warranty that explicitly extends to future performance of the goods. Smith v. Union Supply Co., 675 P.2d 333 (Colo. App. 1983); Boyd v. A.O. Smith Harvestore Prods., 776 P.2d 1125 (Colo. App. 1989).

Warranty did not extend to future performance of goods and buyer's cause of action accrued when tender of delivery was made where manufacturer, by provisions of sale contract, did not explicitly promise that the product would not malfunction, only that, if it did, it would be repaired or replaced. Boyd v. A.O. Smith Harvestore Prods., 776 P.2d 1125 (Colo. App. 1989).

Actions of seller toll statute of limitations. Where a seller delivered a good, made repeated assurances that the product would be repaired to meet contract performance requirements and made efforts to improve the product, those promises and efforts tolled the statute of limitations in subsection (1) until the seller denied liability and refused to make further efforts to improve the product. Colorado-Ute Elec. Ass'n v. Envirotech Corp., 524 F. Supp. 1152 (D. Colo. 1981).

Where seller guaranteed buyer that product would perform at a certain level of reliability for successive intervals until a specified time, this guarantee effectively delayed commencement of the limitations period for seeking a "true fix" remedy until that time. Curragh Queensland Mining v. Dresser Indus., 55 P.3d 235 (Colo. App. 2002).

Because this section contains no specific tolling provision and does not otherwise indicate to the contrary, the general tolling provisions of § 13-81-103 apply. Haberkorn by Haberkorn v. ROHM-GMBH, 709 P.2d 44 (Colo. App. 1985).

Applied in Glen Peck, Ltd. v. Fritsche, 651 P.2d 414 (Colo. App. 1981); Hawkinson v. A.H. Robins, Co., Inc., 595 F. Supp. 1290 (D. Colo. 1984); Richard O'Brien Companies v. Challenge-Cook Bros., 672 F. Supp. 466 (D. Colo. 1987).

4-2.5 ARTICLE 2.5

Leases

PART 1

GENERAL PROVISIONS

4-2.5-101. Short title.

4-2.5-102. Scope.

4-2.5-103. Definitions and index of definitions.

4-2.5-104. Leases subject to other law.

4-2.5-105. Territorial application of article to goods covered by certificate of title.

4-2.5-106. Limitation on power of parties to consumer lease to choose applicable law and judicial forum.

4-2.5-107. Waiver or renunciation of claim or right after default.

4-2.5-108. Unconscionability.

4-2.5-109. Option to accelerate at will.

PART 2

FORMATION AND CONSTRUCTION OF LEASE CONTRACT

4-2.5-201. Statute of frauds.

4-2.5-202. Final written expression: Parol or extrinsic evidence.

4-2.5-203. Seals inoperative.

4-2.5-204. Formation in general.

4-2.5-205. Firm offers.

4-2.5-206. Offer and acceptance in formation of lease contract.

4-2.5-207. Course of performance or practical construction.

4-2.5-208. Modification, rescission, and waiver.

4-2.5-209. Lessee under finance lease as beneficiary of supply contract.

4-2.5-210. Express warranties.

4-2.5-211. Warranties against interference and against infringement; lessee's obligation against infringement.

4-2.5-212. Implied warranty of merchantability.

4-2.5-213. Implied warranty of fitness for particular purpose.

4-2.5-214. Exclusion or modification of warranties.

4-2.5-215. Cumulation and conflict of warranties express or implied.

4-2.5-216. Third-party beneficiaries of express and implied warranties.

4-2.5-217. Identification.

4-2.5-218. Insurance and proceeds.

4-2.5-219. Risk of loss.

4-2.5-220. Effect of default on risk of loss.

4-2.5-221. Casualty to identified goods.

PART 3

EFFECT OF LEASE CONTRACT

4-2.5-301. Enforceability of lease contract.

4-2.5-302. Title to and possession of goods.

4-2.5-303. Alienability of party's interest under lease contract or of lessor's residual interest in goods; delegation of performance; transfer of rights.

4-2.5-304. Subsequent lease of goods by lessor.

4-2.5-305. Sale or sublease of goods by lessee.

4-2.5-306. Priority of certain liens arising by operation of law.

4-2.5-307. Priority of liens arising by attachment or levy on, security interests in, and other claims to goods.

4-2.5-308. Special rights of creditors.

4-2.5-309. Lessor's and lessee's rights when goods become fixtures.

4-2.5-310. Lessor's and lessee's rights when goods become accessions.

4-2.5-311. Priority subject to subordination.

PART 4

PERFORMANCE OF LEASE CONTRACT: REPUDIATED, SUBSTITUTED AND EXCUSED

4-2.5-401. Insecurity: Adequate assurance of performance.

4-2.5-402. Anticipatory repudiation.

4-2.5-403. Retraction of anticipatory repudiation.

4-2.5-404. Substituted performance.

4-2.5-405. Excused performance.

4-2.5-406. Procedure on excused performance.

4-2.5-407. Irrevocable promises: Finance leases.

PART 5

DEFAULT

SUBPART A

IN GENERAL

4-2.5-501. Default: Procedure.

4-2.5-502. Notice after default.

4-2.5-503. Modification or impairment of rights and remedies.

4-2.5-504. Liquidation of damages.

4-2.5-505. Cancellation and termination and effect of cancellation, termination, rescission, or fraud on rights and remedies.

4-2.5-506. Statute of limitations.

4-2.5-507. Proof of market rent: time and place.

SUBPART B

DEFAULT BY LESSOR

4-2.5-508. Lessee's remedies.

4-2.5-509. Lessee's rights on improper delivery; rightful rejection.

4-2.5-510. Installment lease contracts: rejection and default.

4-2.5-511. Merchant lessee's duties as to rightfully rejected goods.

4-2.5-512. Lessee's duties as to rightfully rejected goods.

4-2.5-513. Cure by lessor of improper tender or delivery; replacement.

4-2.5-514. Waiver of lessee's objections.

4-2.5-515. Acceptance of goods.

4-2.5-516. Effect of acceptance of goods; notice of default; burden of establishing default after acceptance; notice of claim or litigation to person answerable over.

4-2.5-517. Revocation of acceptance of goods.

4-2.5-518. Cover; substitute goods.

4-2.5-519. Lessee's damages for nondelivery, repudiation, default and breach of warranty in regard to accepted goods.

4-2.5-520. Lessee's incidental and consequential damages.

4-2.5-521. Lessee's right to specific performance or replevin.

4-2.5-522. Lessee's right to goods on lessor's insolvency.

SUBPART C

DEFAULT BY LESSEE

4-2.5-523. Lessor's remedies.

4-2.5-524. Lessor's right to identify goods to lease contract.

4-2.5-525. Lessor's right to possession of goods.

4-2.5-526. Lessor's stoppage of delivery in transit or otherwise.

4-2.5-527. Lessor's rights to dispose of goods.

4-2.5-528. Lessor's damages for nonacceptance, failure to pay, repudiation, or other default.

4-2.5-529. Lessor's action for the rent.

4-2.5-530. Lessor's incidental damages.

4-2.5-531. Standing to sue third parties for injury to goods.

4-2.5-532. Lessor's rights to residual interest.

4-2.5-533. Other measures of damages.

PART 1

GENERAL PROVISIONS