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(1) identified to the contract and (2) still in the seller’s control. If resale becomes possible, the seller may resell them any time before the judgment is collected. If the seller does resell the goods, the buyer must receive credit against the price for the net resale proceeds. Upon paying the judgment, the buyer becomes entitled to any goods not resold. Notably, § 2-706 does not govern this resale process in connection with an action for the price. [U.C.C. § 2-709(2) (1951); 2 Hawkland UCC Series § 2-709:1, Westlaw (database updated June 2021).] c. Result if Seller Is Not Entitled to the Price If the seller’s action for the price fails ( i.e. , the seller is not entitled to the price), and assuming the buyer has breached the contract by repudiation, failing to pay when due, or wrongly rejecting or revoking acceptance of the goods, the seller is not without remedy. Rather, in the same action, the seller will receive market-price damages under § 2-708. Of course, if appropriate, the seller may also sue for resale damages under § 2-706. [U.C.C. § 2-709(3) (1951); 2 Hawkland UCC Series § 2-709:2, Westlaw (database updated June 2021); Resale by Seller, Seller’s Damages for Buyer’s Nonacceptance or Repudiation, supra .] 10. Seller’s Incidental Damages Section 2-710 lets the seller recover incidental damages flowing from the buyer’s breach. Broadly speaking, incidental damages embrace costs, commissions, charges, and expenses that the seller incurs in dealing with the consequences of the buyer’s breach. Examples include costs incurred to stop delivery; effectuate the goods’ care, transportation, or custody ( e.g. , storage costs) following the breach; or return or resell the goods. Incidental damages normally donot include either attorney’s fees or lost profits. For the seller to recover for any costs as incidental damages, the costs must be commercially reasonable under the circumstances. [U.C.C. § 2-710 (1951); 2 Hawkland UCC Series § 2-710:1, Westlaw (database updated June 2021).] a. Seller’s Entitlement to Incidental v. Consequential Damages As opposed to incidental damages, most courts hold that the seller is not entitled to consequential damages. Authority on the distinction between these types of damages is inconsistent, reflecting the difficulty of drawing that distinction in particular cases. For instance, some authority holds that interest on the unpaid purchase price and overhead expenses are incidental damages. Other authority deems these costs to be consequential damages. For more thorough discussion, see Buyer’s Incidental and Consequential Damages, infra . [ See 2 Hawkland UCC Series § 2-710:1, Westlaw (database updated June 2021).]
Buyer’s Remedies for Goods Not Accepted
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