Sales and Leases | 27
b. Implementing the Resale Generally, the resale may be by public or private sale. A sale by auction is a public sale; any other sale is private. Each aspect of the resale must be commercially reasonable, including the time, place, terms, manner, and method of sale. The seller must reasonably identify that the resale refers to the breached contract. Rules for Resale by Private Sale In a private resale, the seller must, within a reasonable time, afford the buyer notice of intent to resell.
Resale by Public Sale Special rules apply to public resales, including:
only identified goods can be resold, unless there is a recognized market for public sales of futures in the goods ( e.g. , commodities futures markets); the resale must occur at a usual place or market for public sale if readily available, or if not, some other place where there is reasonable demand for the goods; the seller must give the buyer reasonable notice of the sale’s time and place, unless the goods either are perishable or threaten to decline speedily in value; if the sale occurs somewhere other than the goods’ location, the notification must state the goods’ location, and the seller must permit prospective bidders to make reasonable inspection of the goods; and the seller may bid. c. Rule That All Aspects of the Resale Must Be Commercially Reasonable Generally, the resale is commercially reasonable if the seller uses reasonable diligence to obtain the best price practicable under the circumstances, though the price need not be the absolute highest obtainable. Crucially, the seller must implement the resale within a reasonable time after the breach. 3. Seller’s Damages for Buyer’s Nonacceptance or Repudiation The general damages formula of § 2-708 applies if the buyer repudiates the contract or wrongly refuses to accept the goods, and the seller does not properly elect some alternative remedy. Under this formula, damages include (1) the difference between the market price (at the time and place for tender) and the contract price, plus (2) incidental damages under § 2- 710, minus (3) expenses saved due to the buyer’s breach. Article 2 sets forth special rules to help determine the market price.
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