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the seller could not resell identified goods at a reasonable price, even with reasonable effort, or else any such effort would fail ( e.g. , custom-made goods).
6. Seller’s Incidental Damages The seller’s incidental damages include commercially reasonable 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 exclude lost profits and attorney’s fees.
Buyer’s Remedies for Goods Not Accepted
The buyer has specific remedies, in addition to cancelling the contract, if the goods are never accepted.
1. Cover Cover means that the buyer can make a reasonable purchase of or contract to obtain substitute goods for those the breaching seller was to deliver. Cover applies if the seller fails to deliver or repudiates the contract, or if the buyer justifiably rejects the goods or revokes acceptance. Cover must be done commercially reasonably, in good faith, and without unreasonable delay. a. Commercially Reasonable Cover Commercially reasonable cover does not require terms or goods identical to those in the breached contract. The substitute goods need only be commercially useful as reasonable substitutes, though they may fail this requirement if their nature or quality is substantially superior to that of the contractual goods. The method of cover need not be the most efficient or cheapest in hindsight. Market price is quite relevant. b. Cover Damages Assuming proper cover, the buyer can recover (1) the difference between the cover costs and the contract price, plus (2) incidental or consequential damages owing to the seller’s breach, plus (3) any portion of the purchase price paid, minus (4) expenses saved due to the seller’s breach. 2. Buyer’s Rights on Seller’s Nondelivery or Repudiation Section 2-713 sets forth the general damages formula if the seller breaches the contract by repudiation, failure to deliver the goods, making a nonconforming delivery, or delivering nonconforming goods that the buyer rejects or whose acceptance the buyer rightfully revokes.
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