In furtherance of the adjustment of any claim or dispute

1. (a) either party on reasonable notification to the other and for the purpose of ascertaining the facts and preserving evidence has the right to inspect, test and sample the goods including such of them as may be in the possession or control of the other; and

2. (b) the parties may agree to a third party inspection or survey to determine the conformity or condition of the goods and may agree that the findings shall be binding upon them in any subsequent litigation or adjustment.

   Oklahoma Code Comment

3. (a) Oklahoma has had no previous similar law. Several questions are raised by this section. Does this give authority for the

   buyer, who has already decided to repudiate the contract, to go on a "fishing" expedition in the hopes of finding a defect in the goods to insulate him from liability for his breach? Does this section qualify Section 2-513 to permit inspection before acceptance of the goods, even though the terms of the agreement are "cash against document?" This section should not be construed to alter the rights granted by other sections. Since the rights and duties imposed by the Commercial Code are in all cases qualified by Section 1-203, which requires commercial good faith, this section should be construed only to give the right of inspection in cases in which one party has reasonable cause to believe that there is, or has been a breach by either party. As to the second question, does it qualify the right of inspection before payment, the answer may be yes, to a degree. If the buyer has refused to pay against the document and to accept the goods upon a good faith belief that the seller had shipped nonconforming goods, he may, under this section, demand an inspection to preserve evidence of breach. However, the right must be exercised in good faith, and not merely to hinder or delay the seller's right to resell following a rejection by the buyer.

   Another question is raised: how shall the

   rights be enforced ? If either the buyer or the seller refuses to permit the other to inspect, how shall the duties imposed be enforced? The answer is not stated.

4. (b) Does this section authorize the parties to agree to be bound by the finding of an appraiser, or to be bound by the decision of an arbitrator ? Previously in Oklahoma a purely executory

   agreement to be bound by an appraiser was binding, but an agreement to submit all questions as to future controversies to an arbitrator was held not enforceable as an attempt to deprive the courts of jurisdiction and as contrary to public policy. Wilson v. Gregg, 208 Okl. 291, 255 P.2d 517 (1953). It appears that the drafters had more than a mere appraisal in mind in that the third party may be given the right to determine "the conformity or condition" of the goods, and arbitrate the controversy. If so, Wilson v. Gregg, supra, is overruled to the extent provided by this section.

Laws 1961, SB 36, p. 91, §