Sales and Leases | 30
This formula is available to the buyer only if and to the extent that the buyer (1) does not exercise her right to cover or (2) tries to cover but fails to comply with § 2-712’s rules on cover. The formula is also unavailable insofar as the buyer accepts the goods without revoking acceptance. a. General Damages Formula under § 2-713 The general damages formula under § 2-713 is (1) the goods’ market price, minus (2) the contract price, minus (3) any expenses the buyer saved due to the breach, plus (4) the buyer’s incidental and consequential damages, plus (5) any portion of the purchase price paid. The buyer need not account to the seller for any excess of contract price over market price. 3. Buyer’s Right to Specific Performance The buyer may obtain specific performance, but only (1) if the goods are unique or (2) in other proper circumstances. Unique, as used here, means that the goods are not commercially feasible to replace ( e.g. , heirlooms, priceless artworks, or goods in requirement or output contracts implicating a specific or peculiarly available market or source). Other proper circumstances include instances in which (1) the buyer cannot obtain suitable replacement goods or (2) money damages would not afford an adequate remedy. Courts may, and often do, impose conditions on specific performance, such as requiring the buyer to pay the purchase price. a. Discretionary Nature of Specific Performance Courts may deny specific performance even if the requirements are met, which they may do if money damages would furnish adequate compensation. Here, courts consider three factors: the difficulty of proving damages with reasonable certainty, the difficulty of obtaining substitute goods with money damages, and the likelihood that a damages award could not be collected through judgment and execution ( e.g. , seller’s insolvency).
Buyer’s Damages for Breach Regarding Accepted Goods
If the buyer has accepted goods and not revoked acceptance, the buyer may recover direct damages, plus incidental and consequential damages.
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