“Written-Terms Trump Hand-to-Hand Cash” – The Second Circuit’s Clarification of U.C.C. §§ 2-201 & 2-209, Apparent Authority and Foreseeability
in Vista Food Exchange, Inc. v. Comercial De Alimentos Sanchez (2d Cir. 2025)

1. Introduction

This appeal arose out of a routine meat-supply relationship that soured when the buyer, Comercial de Alimentos Sanchez (“Sanchez”), insisted it had already paid over US $750,000 for 39 invoices by handing cash to Vista’s travelling salesman in Tijuana, whereas the seller, Vista Food Exchange, Inc. (“Vista”), claimed it never received a penny. After the district court granted summary judgment to Sanchez, the Second Circuit vacated most of that decision, articulating important guidance on:

• the evidentiary hurdles on cross-motions for summary judgment;
• how U.C.C. §2-201 (Statute of Frauds) and §2-209 (modification) constrain oral or informal changes to written payment terms;
• the limited scope of a salesman’s actual or apparent authority to receive payment;
• the probative limits of “course-of-performance” evidence when invoices are internally inconsistent or fabricated; and
• the fact-sensitive nature of proximate cause/foreseeability when an employee allegedly steals customer cash.

Parties, practitioners and judges now have fresh Second Circuit authority underscoring that written remittance clauses remain king unless a statutorily-compliant modification or an undisputed course of performance clearly proves otherwise.

2. Summary of the Judgment

The district court (S.D.N.Y., Abrams, J.) had:

1. denied Vista’s motion for summary judgment;
2. granted Sanchez’s motion and dismissed the contract claim on two grounds – (i) Sanchez had “paid in cash” through Vista’s salesman, thus no breach; and (ii) even if the payment route breached the written invoices, Vista’s loss flowed from the unforeseeable intervening theft by the salesman;
3. dismissed ancillary claims (implied contract, promissory estoppel, unjust enrichment).

The Second Circuit (Kearse, Park, Robinson, JJ.) reversed in substantial part:

• Affirmed denial of Vista’s own summary-judgment bid;
• Vacated grant of summary judgment for Sanchez on breach of contract and unjust enrichment, finding multiple genuine disputes of material fact;
• Affirmed dismissal of implied-contract and promissory-estoppel counts.

The matter returns to the district court for trial on breach of contract and, potentially, unjust enrichment.

3. Analysis

3.1 Precedents Cited and Their Influence

a) Summary-Judgment Trilogy

• Anderson v. Liberty Lobby, 477 U.S. 242 (1986) – materiality and credibility principles;
• Matsushita, 475 U.S. 574 (1986) – record “as a whole” review;
• Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000) – courts must disregard evidence the jury need not believe.

The panel chastised the district judge for implicitly crediting Sanchez’s evidence (e.g., the salesman’s affidavit) instead of applying the plaintiff-friendly inference rule.

b) U.C.C. Contract Principles

• CT Chemicals v. Vinmar Impex, 81 N.Y.2d 174 (1993) – a contract may be modified only in accordance with §2-209 and Statute of Frauds;
• B & R Textile v. Domino Textiles, 77 A.D.2d 539 (1st Dep’t 1980) – invoices can satisfy §2-201(2) when uncontested;
• Creative Interiors (N.Y. Sup. Ct. 2009) – oral modifications for >$500 goods must still meet §2-201.

The panel relied on these authorities to stress that Sanchez’s alleged oral “cash-in-Tijuana” deal, even if true, required written memorialisation.

c) Agency and Apparent Authority

• Wen Kroy Realty, 260 N.Y. 84 (1932) – an agent is authorised to act only within the usual manner of the business;
• Hallock v. State, 64 N.Y.2d 224 (1984) – apparent authority arises from principals’ manifestations, not agents’;
• Faith Assembly, 106 A.D.3d 47 (2d Dep’t 2013) – outlines fiduciary nature of agency relationship.

The appellate court held the salesman’s role as a mere order-taker, with no financial authority, was hotly disputed – enough to defeat summary judgment.

d) Foreseeability / Proximate Cause

• Kush v. City of Buffalo, 59 N.Y.2d 26 (1983) and Nallan, 50 N.Y.2d 507 (1980) – intentional/criminal third-party acts break the causal chain unless foreseeable.

The panel ruled the foreseeability of a salesperson absconding with large sums of cash is fact-bound and could not be decided as a matter of law.

3.2 Court’s Legal Reasoning

1. Agency Dispute – Vista’s CFO swore that salespeople had no authority to change payment terms; Sanchez’s own declarations showed it “checked with Vista” because it doubted the salesman’s power. Authority therefore remained a jury issue.
2. Statute-of-Frauds Compliance – Any modification allowing cash payment in Mexico for goods > $500 must be evidenced by a writing signed by Vista. None existed.
3. Course-of-Performance Evidence – Sanchez’s 61-page packet of 2013 documents was riddled with mismatched invoice numbers, differing prices, and “Commercial Invoice” forms not issued by Vista. Authenticity and reliability were triable questions.
4. Evidentiary Weight vs. Admissibility – Even if the salesman’s affidavit and “paid” marks were admissible under Rule 804(b)(3) as against penal interest, the district court erred by crediting them rather than asking whether a jury must credit them.
5. Foreseeability of Theft – Sanchez’s step-by-step “sample” cash deliveries, security concerns and knowledge that the salesman was suddenly eager to be paid in cash could permit a reasonable jury to deem theft foreseeable; summary judgment was therefore improper.

3.3 Likely Impact of the Decision

• Tighter Reliance on Written Remittance Clauses – Suppliers can take comfort that, absent a signed modification, invoices directing payment to a fixed location remain enforceable even if a customer claims a contrary oral deal.
• Limited Shield from Employee Theft – Buyers attempting to pay company employees in cash cannot assume they are insulated from liability merely because the employee steals the money; foreseeability will often be triable.
• Agency Litigation – The opinion stresses fact-sensitivity of apparent authority. Companies should spell out salespersons’ lack of collection authority to customers in writing.
• Evidence Management – Parties relying on historical payment practices must preserve original invoices and contemporaneous receipts; “recreated” documents may backfire.

4. Complex Concepts Simplified

Statute of Frauds (U.C.C. §2-201)

A rule that contracts for the sale of goods priced at US $500+ are unenforceable unless there is a signed writing (or confirming invoice between merchants) proving the deal.

Contract Modification (U.C.C. §2-209)

Changing an existing contract is itself a new contract; if the new terms would have needed a writing originally, they still do after modification.

Apparent Authority

The power an agent seems to have because of the principal’s words or conduct. The agent cannot create this power by self-proclamation.

Summary Judgment

A procedural device where the judge decides a case (or part of it) without trial because no reasonable jury could disagree about the key facts.

Proximate Cause & Foreseeability

A defendant is liable only for harms that are a reasonably predictable result of its breach; an unexpected criminal act can break the chain—unless that act itself was foreseeable.

5. Conclusion

The Second Circuit’s decision re-centres the primacy of written commercial terms and the evidentiary rigor expected when parties claim to have deviated from them. Cash handed to a salesman thousands of miles from the named payee is laden with factual and legal peril. Going forward:

• Businesses should insist on, and adhere to, written modifications if they wish to change payment locations or methods;
• Sellers must clearly delineate sales personnel’s authority in writing to customers to avoid inadvertent apparent-authority disputes; and
• Courts must resist weighing credibility at the summary-judgment stage, especially where evidence is internally inconsistent or susceptible to multiple inferences.

Vista Food Exchange thus stands as a robust reminder: a stack of re-typed invoices and a belated affidavit cannot, without more, dismantle the safe harbour of the Statute of Frauds or erase triable issues about agency and foreseeable loss.