Suzy Smith contracted to purchase a pool heater from Sunkissed Pools. As part of the $4,000 contract, Sunkissed agreed to install the pool heater, which was delivered to Smith’s home and left in the driveway. The heater was too heavy for Smith to lift, and she was forced to leave it in the driveway because no one from Sunkissed responded to her calls about its installation. Subsequently, the heater disappeared from the driveway. Sunkissed maintained that the risk of loss had passed to Smith. Smith maintained that the failure to install the heater as promised is a breach of contract. Who should bear the risk for the stolen pool heater?

To determine who should bear the risk for the stolen pool heater in this situation, we need to examine the terms of the contract between Suzy Smith and Sunkissed Pools, as well as applicable laws regarding the passing of risk in the sale of goods.

In general, the passing of risk depends on the agreement between the buyer and the seller. The Uniform Commercial Code (UCC), which governs commercial transactions in the United States, provides rules for determining when the risk of loss shifts from the seller to the buyer.

In this case, Suzy Smith agreed to purchase a pool heater from Sunkissed Pools for $4,000. It is stated that Sunkissed agreed to install the pool heater as part of the contract. However, despite the delivery of the heater to Smith's home, no installation took place, and the heater was left in the driveway.

One approach to determining the party who bears the risk of loss is to consider whether the seller (Sunkissed Pools) is a merchant. Merchants are individuals or businesses who deal in goods of the kind sold. If Sunkissed Pools is a merchant, then the risk of loss would have passed to Suzy Smith upon her taking physical possession of the goods. However, even if Sunkissed Pools is a merchant, there may be other factors that could override this general rule.

In this case, Smith argued that the failure by Sunkissed Pools to install the heater as promised constitutes a breach of contract. Smith's argument suggests that Sunkissed Pools did not fulfill their obligations under the contract. If it is determined that Sunkissed Pools breached the contract, Smith may have legal remedies available, such as seeking damages or specific performance.

To fully understand the legal implications and determine who should bear the risk for the stolen pool heater, it is essential to consult with a legal professional who can consider the specific details of the contract, applicable laws, and any relevant case precedents.

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