Measure of damages for nondelivery or repudiation by seller is the difference between market price and contract price at the place of tender at the time the buyer learns of the breach. Burgess v. Curly Olney's, Inc., 198 Neb. 153, 251 N.W.2d 888 (1977).
Consequential damages from seller's breach include any loss resulting from general or particular requirements or needs of which seller had reason to know at time of contracting, and which could not reasonably be prevented by cover or otherwise. National Farmers Organization, Inc. v. McCook Feed & Supply Co., 196 Neb. 424, 243 N.W.2d 335 (1976).
The measure of damages for a buyer upon anticipatory repudiation by the seller under subsection (1) of this section is the difference between the contract price and the price of the goods on the date of repudiation, so long as it would be commercially reasonable for the buyer to cover on the date of repudiation. Trinidad Bean & Elev. Co. v. Frosh, 1 Neb. App. 281, 494 N.W.2d 347 (1992).
Prior Uniform Statutory Provision: Section 67(3), Uniform Sales Act.
Purposes of Changes:
To clarify the former rule so that:
1. The general baseline adopted in this section uses as a yardstick the market in which the buyer would have obtained cover had he or she sought that relief. So the place for measuring damages is the place of tender (or the place of arrival if the goods are rejected or their acceptance is revoked after reaching their destination) and the crucial time is the time at which the buyer learns of the breach.
2. The market or current price to be used in comparison with the contract price under this section is the price for goods of the same kind and in the same branch of trade.
3. When the current market price under this section is difficult to prove the section on determination and proof of market price is available to permit a showing of a comparable market price or, where no market price is available, evidence of spot sale prices is proper. Where the unavailability of a market price is caused by a scarcity of goods of the type involved, a good case is normally made for specific performance under this article. Such scarcity conditions, moreover, indicate that the price has risen and under the section providing for liberal administration of remedies, opinion evidence as to the value of the goods would be admissible in the absence of a market price and a liberal construction of allowable consequential damages should also result.
4. This section carries forward the standard rule that the buyer must deduct from his or her damages any expenses saved as a result of the breach.
5. The present section provides a remedy which is completely alternative to cover under the preceding section and applies only when and to the extent that the buyer has not covered.
Point 3: Sections 1-106, 2-716, and 2-723.
Point 5: Section 2-712.
Definitional Cross References:
"Buyer". Section 2-103.
"Contract". Section 1-201.
"Seller". Section 2-103.