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Buyer’s Incidental and Consequential Damages In appropriate cases, Article 2 permits the buyer to recover incidental and consequential damages in addition to other remedies. Again, direct, incidental, and consequential damages are distinct types of damages and should not be confused with one another. Drawing these distinctions is difficult, and the authorities are not always consistent. 1. Buyer’s Incidental Damages The definition of the buyer’s incidental damages is similar to that of the seller’s, discussed above. Broadly speaking, incidental damages involve the buyer’s expenses in mopping up after the seller’s breach—that is, normal expenses in dealing with the goods after the breach or mitigating the breach. Section 2-715 articulates three overarching categories of incidental damages. The buyer’s incidental damages include commercially reasonable commissions, charges, or expenses in connection with implementing cover, together with all other reasonable expenses that are incident to the delay or the breach. [U.C.C. § 2-715(1), cmt. 1 (1951); 2 Hawkland UCC Series § 2-715:2, Westlaw (database updated June 2021).] a. Expenses of Handling Nonconforming Goods The buyer’s incidental damages include expenses the buyer reasonably incurs in handling nonconforming goods, that is, inspecting, receiving, transporting, caring for, and maintaining custody of rightfully rejected goods (or goods as to which the buyer can rightfully revoke acceptance). These costs may also include those incurred in trying to repair the goods before rejection or revocation of acceptance. Repair costs incurred after acceptance, assuming no revocation, are normally direct damages, not incidental damages. [U.C.C. § 2-715(1), cmt. 1 (1951); 2 Hawkland UCC Series § 2-715:2, Westlaw (database updated June 2021).] Example : A landscaper contracted to purchase trees from a farmer for use in various landscaping projects. When the trees arrived, they were clearly dry, unhealthy, and unsuitable for use, so the landscaper rightfully rejected the trees. The farmer refused to retrieve the trees or to furnish any instruction on what to do with them. Thus, the landscaper incurred labor costs and other expenses in watering the trees, heeling them in, loading and unloading them, and transporting them to a landfill for disposal. On similar facts, a state trial court held that these expenses were recoverable as incidental damages. The farmer breached the contract by furnishing unhealthy trees. The landscaper reasonably incurred these expenses in caring for and disposing of the trees. [ See Gragg Farms & Nursery v. Kelly Green Landscaping , 674 N.E.2d 785 (Ohio Mun. Ct. 1996).]
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