CO Code § 4-2-713 (2021)
2021 Colorado Code|Title 4 - Uniform Commercial Code|Article 2 - Sales|Part 7 - Remedies|§ 4-2-713. Buyer's Damages for Nondelivery or Repudiation

  Subject to the provisions of this article with respect to proof of market price (section 4-2-723), the measure of damages for nondelivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this article (section 4-2-715), but less expenses saved in consequence of the seller's breach.    Market price is to be determined as of the place for tender, or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.     History. Source: L. 65: P. 1340, § 1. C.R.S. 1963: § 155-2-713. History. Source: L. 65: P. 1340, § 1. C.R.S. 1963: § 155-2-713.    OFFICIAL COMMENT   Prior Uniform Statutory Provision: Section 67(3), Uniform Sales Act.   Changes: Rewritten.   Purposes of Changes: To clarify the former rule so that:   1. The general baseline adopted in this section uses as a yardstick the market in which the buyer would have obtained cover had he sought that relief. So the place for measuring damages is the place of tender (or the place of arrival if the goods are rejected or their acceptance is revoked after reaching their destination) and the crucial time is the time at which the buyer learns of the breach.   2. The market or current price to be used in comparison with the contract price under this section is the price for goods of the same kind and in the same branch of trade.   3. When the current market price under this section is difficult to prove the section on determination and proof of market price is available to permit a showing of a comparable market price or, where no market price is available, evidence of spot sale prices is proper. Where the unavailability of a market price is caused by a scarcity of goods of the type involved, a good case is normally made for specific performance under this Article. Such scarcity conditions, moreover, indicate that the price has risen and under the section providing for liberal administration of remedies, opinion evidence as to the value of the goods would be admissible in the absence of a market price and a liberal construction of allowable consequential damages should also result.   4. This section carries forward the standard rule that the buyer must deduct from his damages any expenses saved as a result of the breach.   5. The present section provides a remedy which is completely alternative to cover under the preceding section and applies only when and to the extent that the buyer has not covered.   Cross References:   Point 3: Sections 1-106, 4-2-716 and 4-2-723 .   Point 5: Section 4-2-712 .   Definitional Cross References:   “Buyer”. Section 4-2-103 .   “Contract”. Section 4-1-201 .   “Seller”. Section 4-2-103 .   ANNOTATION   Law reviews. For article, “One Year Review of Contracts”, see 39 Dicta 161 . For article, “Commercial Law”, see 55 Den. L.J. 425 (1978).   Annotator's note. Since § 4-2-713 is similar to repealed § 121-1-67, CRS 53, and CSA, C. 143A, § 67 (uniform sales act), relevant cases construing those provisions have been included in the annotations to this section. Annotator's note. Since § 4-2-713 is similar to repealed § 121-1-67, CRS 53, and CSA, C. 143A, § 67 (uniform sales act), relevant cases construing those provisions have been included in the annotations to this section.   Where a corporation refuses to deliver stock pursuant to an option agreement, the price paid for the option is not the measure of damages, and where the stock is available on the market at a much lesser price than that in the option agreement, dismissal for lack of damages is appropriate. Colo. Mgt. Corp. v. Am. Founders Life Ins. Co., 148 Colo. 519 , 367 P.2d 335 (1961).   Where there is no mutual rescission of a contract for sale, the buyer cannot recover a down payment if he wrongfully refuses to accept redelivery. Thack v. Durham, 120 Colo. 253 , 208 P.2d 1159 (1949).   “Time when buyer learned of the breach” means “time of performance” in anticipatory repudiation cases. Cargill, Inc. v. Stafford, 553 F.2d 1222 (10th Cir. 1977).   Damages normally measured from time performance is due. Under this section damages normally should be measured from the time when performance is due and not from the time when the buyer learns of repudiation. Cargill, Inc. v. Stafford, 553 F.2d 1222 (10th Cir. 1977).   Under this section a buyer may urge continued performance for a reasonable time. Cargill, Inc. v. Stafford, 553 F.2d 1222 (10th Cir. 1977).   After reasonable period, buyer should cover. At the end of a reasonable period during which the buyer may urge continued performance he should cover if substitute goods are readily available. Cargill, Inc. v. Stafford, 553 F.2d 1222 (10th Cir. 1977).   Calculation of damages if buyer cannot cover. If a valid reason exists for failure or refusal to cover after the reasonable time for urging continued performance is over, damages may be calculated from the time when performance is due. Cargill, Inc. v. Stafford, 553 F.2d 1222 (10th Cir. 1977).   Calculation if buyer could but does not cover. If after a reasonable time during which a buyer urges continued performance substitution is readily available and buyer does not cover within a reasonable time, damages should be based on the price at the end of that reasonable time rather than on the price when performance is due. Cargill, Inc. v. Stafford, 553 F.2d 1222 (10th Cir. 1977).   Applied in William B. Tanner Co. v. Mesa Broad. Co., 575 F. Supp. 1501 (D. Colo. 1983 ).