(dissenting). I respectfully dissent.
The majority opinion centers on two factors: first, it is asserted that the fact that the defendant has filed no cross-appeal is somehow relevant to the plaintiff’s right to recover and, second, the *478assertion that the provisions of the Michigan Vehicle Code regarding title to the automobile in question, MCL 257.217(b); MSA 9.1917(2), controls the outcome here. I do not agree.
To begin with, I do not accept the finding by the trial court that Mr. Miller accepted the vehicle within the meaning of the Uniform Commercial Code. MCL 440.2606; MSA 19.2606. The parties certainly did not agree on this point and there is absolutely nothing in the record which would support such a finding.
The UCC is very plain concerning acceptance:
"Sec. 2606. (1) Acceptance of goods occurs when the buyer
"(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
"(b) fails to make an effective rejection (subsection (1) of section 2602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
"(c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.”
Because acceptance is a term of art as it is used in the UCC, and because acceptance has broad legal ramifications, including the duty to pay for the goods, MCL 440.2607(1); MSA 19.2607(1), the finding of the trial court was clearly erroneous and should be reversed. As one notes, taking delivery is not acceptance because the UCC provides that the buyer has a reasonable time to inspect prior to accepting within the meaning of the code. MCL 440.2606(1), subds (a), (b); MSA 19.2606(1), subds (a), (b).
*479I disagree with the majority’s assertion that the defendant’s failure to file a cross-appeal somehow prejudices the defendant. To the contrary, the defense position was, and continues to be, that Miller owes plaintiff nothing because Mr. Miller’s rejection of the nonconforming automobile was proper. Consistent with the Court of Appeals duty to do justice, GCR 1963, 820, failure to cross-appeal should have no bearing on this case, where consideration of defendant’s position is necessary to a proper determination of the issue raised. See, e.g., Brown v Considine, 108 Mich App 504, 507; 310 NW2d 441 (1981). Moreover, the plaintiffs right to the relief it seeks, or to any relief, depends not on the filing of a cross-appeal, but on the facts surrounding defendant’s rejection of the car.
The right to reject nonconforming goods prior to acceptance is nearly absolute. The UCC plainly and unequivocally rejects the notion of substantial compliance by a seller, insisting on a rule of perfect tender. MCL 440.2601; MSA 19.2601. The UCC limits the perfect tender rule only by express delineation found in §2-612, MCL 440.2612; MSA 19.2612, pertaining to installment contracts and §§ 2-718, MCL 440.2718; MSA 19.2718, and 2-719, MCL 440.2719; MSA 19.2719, which allow contractual limitations on remedies.
In some cases, the UCC also limits a buyer’s right to reject for nonconformity. Section 2-508, MCL 440.2508; MSA 19.2508, gives the seller a right to cure the nonconforming defect. Here the buyer asked for, then demanded a curé, but was met with refusal, then a claim that cure was not possible because of a tire strike. The UCC places the burden of cure on the seller, not the buyer, MCL 440.2508(1); MSA 19.2508(1). Failure to cure within a reasonable time is a risk of the seller, not *480the risk of the buyer. I conclude that this risk is one the plaintiff chose to take.
Since the majority opinion speaks to the matter of an acceptance, this I will address. If there has been an acceptance, it may be revoked for reasons found in § 2-608, MCL 440.2608; MSA 19.2608. At issue is whether the missing spare tire constituted a substantial impairment to the value of the automobile. The majority cites Rozmus v Thompson’s Lincoln-Mercury Co, 209 Pa Super 120; 224 A2d 782 (1966), for the proposition that §2-608 precludes revocation after acceptance for trivial matters that are easily corrected. I accept that as a valid statement of the law, however, in this case, the missing tire was not trivial or unimportant to defendant Miller. The dealer had specific knowledge of the buyer’s requirement of a spare tire, and a specific good was ordered. Therefore, the lack of such tire was not trivial.
Functional tires, including an adequate spare, are an integral part of the safety equipment of every automobile purchased, anywhere. As I pointed out in my original opinion, one would be foolish or suicidal, in light of recent events on Detroit area expressways, to venture forth in an improperly equipped automobile. Since there was no acceptance on the part of this buyer within the UCC meaning of that term, I would hold § 2-608, MCL 440.2608; MSA 19.2608, to be inapplicable to this case.
Also at issue is the propriety of defendant’s rejection. MCL 440.2602; MSA 19.2602 requires a nonmerchant buyer who has rightfully rejected goods to inform the seller of the fact of rejection. Thereafter, the buyer has no further obligation to goods rightfully rejected. MCL 440.2602(2)(c); MSA 19.2602(2)(c). The duty of the seller to remove or *481repossess the nonconforming goods is universally recognized. Presto Mfg Co, Inc v Formetal Engineering Co, 46 Ill App 3d 7; 360 NE2d 510 (1977); Graybar Electric Co v Shook, 283 NC 213; 195 SE2d 514 (1973); Garfinkel v Lehman Floor Covering Co, 60 Misc 2d 72; 302 NYS2d 167 (1969). I find that defendant’s method of notice, the telephone, was appropriate under these circumstances. There is no dispute concerning the unequivocal nature of Mr. Miller’s rejection of the automobile or the reason for the rejection. Moreover, there is no doubt that Mr. Miller did not use the car after he told the plaintiff’s agent to come and pick it up. The cases holding that oral notice is not sufficient are not applicable here. See, e.g, Southeastern Steel Co, Inc v Burton Block & Concrete Co, Inc, 273 SC 634; 258 SE2d 888 (1979). Rather, I would opt for the UCC rule that any notice must be "reasonable” — a notice that reasonably tells the seller of the fact of rejection and the reason therefor. G & H Land & Cattle Co v Heitzman & Nelson, Inc, 102 Idaho 204, 209; 628 P2d 1038 (1981); Jacob Hartz Seed Co, Inc v E R Coleman, 271 Ark 756, 758-759; 612 SW2d 91 (1981).
I would hold that if there was an acceptance, and I think that there was not, then Miller’s rejection was both appropriate and timely.
Finally, the majority relies on Messer v Averill, 28 Mich App 62; 183 NW2d 802 (1970), lv den 384 Mich 808 (1971), for the proposition that the provisions of the Michigan Vehicle Code, MCL 257.217(b); MSA 9.1917(2), control where issues of title are present. Messer concerns a tort liability problem where title, or more particularly ownership, is important and, in most cases, determinative of the outcome of the issue of tort liability. It is my opinion that the holding of Messer doesn’t *482apply where tort liability is not at issue or a third party is not involved.
The UCC specifically rejects any concept of title in its allocation of loss risks. MCL 440.2510; MSA 19.2510. The party who breaches the contract bears the risk of loss. This is categorically true, even where, as here, the buyer has the goods. MCL 440.2510(2); MSA 19.2510(2). Moreover, the seller bears the risk of damage or loss for its refusal to come to Miller’s home to pick up the rejected vehicle. It is undisputed that on the morning after taking delivery of the station wagon, Mr. Miller phoned the dealership, discussed the absence of the spare tire, and, after receiving no satisfactory explanation, orally rejected the automobile as not conforming to the purchase contract. He told the dealer’s agent to come and pick up the car because he refused to drive it at all without a spare tire.
While it may be argued that the seller was precluded from prompt resale of the automobile by the impact of the provisions of the Michigan Vehicle Code, there is a procedure for restoration of title in the seller which is available to persons such as this plaintiff.
The majority concludes that the plaintiff-seller is entitled to the full purchase price of the automobile. This result is not only unconscionable on these facts but wrong as a matter of law. It was the seller who breached the contract. It has no right to damages whatsoever on its own breach because the law gives it no such right, absent a wrongful rejection on the part of the buyer.
In summary, I conclude that Mr. Miller never accepted this automobile. More than that, he made a reasonable, timely demand that the nonconformity be cured. When, for whatever reason, the seller could not or would not cure the nonconformity, *483Miller parked the rejected car and told the seller to come and take it away. The seller did nothing. It should bear the loss.
I would reverse.