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Note : The express language of § 2-708 refers to the difference between the market price at the time and place for tender and the unpaid contract price. However, at least one treatise maintains that the word unpaid should be ignored here, lest there be unintended anomalies in the damages tabulation. [ See 2 Hawkland UCC Series § 2-708:1, Westlaw (database updated June 2021).] b. Determining Market Price Section 2-723 affords guidance in determining the goods’ market price. These rules apply not only in the § 2-708 damages formula, but whenever Article 2 refers to the market price. Market Price in the Case of Anticipatory Repudiation If the basis for the breach is anticipatory repudiation, and the matter goes to trial before performance is due concerning some or all of the goods, market price is determined according to the goods’ price prevailing when the nonbreaching party discovered the repudiation. Given how long it normally takes to get a matter to trial, this rule will seldom apply except in the case of long-term contracts contemplating deliveries fairly far into the future. [U.C.C. § 2-723(1) (1951); 2 Hawkland UCC Series § 2-708:1, Westlaw (database updated June 2021).] Rule if Evidence of Price Prevailing at the Designated Time or Place Is Not Readily Available Article 2 refers to market price in multiple provisions. For instance, § 2-708 calculates damages based on the market price at the time and place of tender. Sometimes, though, evidence of the price prevailing at the designated time or place is not readily available. In that case, § 2-723 allows a court to utilize alternatives to the specified time or place. If a party plans to present evidence of an alternative time or place, that party must afford notice to the other. The evidence is admissible only if the court finds the notice sufficient to avert unfair surprise. [ See U.C.C. § 2-723(2) (1951).] 1) Rule if Evidence of Market Price at Designated Place Is Not Readily Available If evidence of the market price at the designated place is not readily available, the court may utilize the price prevailing in a place that would, in commercial judgment or usage of trade, serve as a reasonable substitute for the designated place. There must be proper allowance for expenses of transporting the goods to and from the alternative place. [U.C.C. § 2-723(2) (1951).]
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