CO Code § 4-2-709 (2021)
2021 Colorado Code|Title 4 - Uniform Commercial Code|Article 2 - Sales|Part 7 - Remedies|§ 4-2-709. Action for the Price

  When the buyer fails to pay the price as it becomes due, the seller may recover, together with any incidental damages under section 4-2-710, the price:   Of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and    Of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.       Where the seller sues for the price, he must hold for the buyer any goods which have been identified to the contract and are still in his control; except, that if resale becomes possible he may resell them at any time prior to the collection of the judgment. The net proceeds of any such resale must be credited to the buyer and payment of the judgment entitles him to any goods not resold.    After the buyer has wrongfully rejected or revoked acceptance of the goods or has failed to make a payment due or has repudiated (section 4-2-610), a seller who is held not entitled to the price under this section shall nevertheless be awarded damages for nonacceptance under section 4-2-708.     History. Source: L. 65: P. 1338, § 1. C.R.S. 1963: § 155-2-709. History. Source: L. 65: P. 1338, § 1. C.R.S. 1963: § 155-2-709.    OFFICIAL COMMENT   Prior Uniform Statutory Provision: Section 63, Uniform Sales Act.   Changes: Rewritten, important commercially needed changes being incorporated.   Purposes of Changes: To make it clear that:   1. Neither the passing of title to the goods nor the appointment of a day certain for payment is now material to a price action.   2. The action for the price is now generally limited to those cases where resale of the goods is impracticable except where the buyer has accepted the goods or where they have been destroyed after risk of loss has passed to the buyer.   3. This section substitutes an objective test by action for the former “not readily resalable” standard. An action for the price under subsection (1)(b) can be sustained only after a “reasonable effort to resell” the goods “at reasonable price” has actually been made or where the circumstances “reasonably indicate” that such an effort will be unavailing.   4. If a buyer is in default not with respect to the price, but on an obligation to make an advance, the seller should recover not under this section for the price as such, but for the default in the collateral (though coincident) obligation to finance the seller. If the agreement between the parties contemplates that the buyer will acquire, on making the advance, a security interest in the goods, the buyer on making the advance has such an interest as soon as the seller has rights in the agreed collateral. See Section 9-204.   5. “Goods accepted” by the buyer under subsection (1)(a) include only goods as to which there has been no justified revocation of acceptance, for such a revocation means that there has been a default by the seller which bars his rights under this section. “Goods lost or damaged” are covered by the section on risk of loss. “Goods identified to the contract” under subsection (1)(b) are covered by the section on identification and the section on identification notwithstanding breach.   6. This section is intended to be exhaustive in its enumeration of cases where an action for the price lies.   7. If the action for the price fails, the seller may nonetheless have proved a case entitling him to damages for non-acceptance. In such a situation, subsection (3) permits recovery of those damages in the same action.   Cross References:   Point 4: Section 4-1-106 .   Point 5: Sections 4-2-501 , 4-2-509 , 4-2-510 and 4-2-704 .   Point 7: Section 4-2-708 .   Definitional Cross References:   “Action”. Section 4-1-201 .   “Buyer”. Section 4-2-103 .   “Conforming”. Section 4-2-106 .   “Contract”. Section 4-1-201 .   “Goods”. Section 4-2-105 .   “Seller”. Section 4-2-103 .   ANNOTATION   Annotator's note. Since § 4-2-709 is similar to repealed § 121-1-63, CRS 53, and CSA, C. 143A, § 63 (uniform sales act), relevant cases construing those provisions have been included in the annotations to this section.   This section provides that where the property in the goods has passed to the buyer who then wrongfully refuses to pay for them, the seller may maintain an action for the price of the goods. Howse v. Crumb, 143 Colo. 90 , 352 P.2d 285.   For the giving notice that seller holds goods as “bailee”, see B. J. Shelton Co. v. Muckle Eng'r Co., 121 Colo. 509 , 218 P.2d 1057 (1950).   Record showing status of sugar market and seller's inventory during relevant period shows efforts to resell would have been unavailing. Great Western Sugar v. Pennant Prods., 748 P.2d 1359 (Colo. App. 1987).   Award of damages using downside pricing was in effect specific performance of the contracts and not a penalty. Great Western Sugar v. Pennant Prods., 748 P.2d 1359 (Colo. App. 1987).   In an action for the price, the seller is entitled to recovery of the price of “goods accepted.” However, the Uniform Commercial Code limits the definition of “goods accepted” to “only goods as to which there has been no justified revocation of acceptance, for such a revocation means that there has been a default by the seller which bars the seller's rights under this section.” Thus, a procedurally effective rejection or revocation bars acceptance, and revocation of acceptance, like rejection, allows the buyer to avoid the obligation to pay the price. To the extent the trial court determined otherwise in its summary judgment rulings, it was incorrect. Cissell Mfg. Co. v. Park, 36 P.3d 85 (Colo. App. 2001).   Applied in Guy Martin Buick, Inc. v. Colo. Springs Nat'l Bank, 32 Colo. App. 235, 511 P.2d 912 (1973); Nations Enters., Inc. v. Process Equip. Co., 40 Colo. App. 390, 579 P.2d 655 (1978).