Nebraska Uniform Commercial Code 2-708
- Uniform Commercial Code
Seller's damages for nonacceptance or repudiation.
(1) Subject to subsection (2) and to the provisions of this article with respect to proof of market price (section 2-723), the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this article (section 2-710), but less expenses saved in consequence of the buyer's breach.
(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this article (section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.
- Laws 1963, c. 544, Art. II, § 2-708, p. 1759.
Where seller salvages returned goods which are not resalable, measure of damages controlled by this section and is recovery of lost profits plus expense or cost incurred in salvaging. Chicago Roller Skate Mfg. Co. v. Sokol Manuf. Co., 185 Neb. 515, 177 N.W.2d 25 (1970).
Under statute of frauds as embodied in U.C.C., buyer by making a part payment and seller by accepting that part payment, make an enforceable contract only as to that portion of goods that could have been purchased by that part payment. In re Augustin Bros. Co., 460 F.2d 376 (8th Cir. 1972).
Damages recoverable from wrongfully canceling buyer included contract price for cassettes less amount received on resale of cassettes, plus profit if contract had been completed, less amount paid on contract. Holiday Manuf. Co. v. B.A.S.F. Systems, Inc., 380 F.Supp. 1096 (D. Neb. 1974).
Prior Uniform Statutory Provision: Section 64, Uniform Sales Act.
Purposes of Changes:
To make it clear that:
1. The prior uniform statutory provision is followed generally in setting the current market price at the time and place for tender as the standard by which damages for nonacceptance are to be determined. The time and place of tender is determined by reference to the section on manner of tender of delivery, and to the sections on the effect of such terms as F.O.B., F.A.S., C.I.F., C. & F., Ex Ship, and No Arrival, No Sale.
In the event that there is no evidence available of the current market price at the time and place of tender, proof of a substitute market may be made under the section on determination and proof of market price. Furthermore, the section on the admissibility of market quotations is intended to ease materially the problem of providing competent evidence.
2. The provision of this section permitting recovery of expected profit including reasonable overhead where the standard measure of damages is inadequate, together with the new requirement that price actions may be sustained only where resale is impractical, are designed to eliminate the unfair and economically wasteful results arising under the older law when fixed price articles were involved. This section permits the recovery of lost profits in all appropriate cases, which would include all standard priced goods. The normal measure there would be list price less cost to the dealer or list price less manufacturing cost to the manufacturer. It is not necessary to a recovery of "profit" to show a history of earnings, especially if a new venture is involved.
3. In all cases the seller may recover incidental damages.
Point 1: Sections 2-319 through 2-324, 2-503, and 2-723.
Point 2: Section 2-709.
Point 3: Section 2-710.
Definitional Cross References:
"Buyer". Section 2-103.
"Contract". Section 1-201.
"Seller". Section 2-103.