Okla. Stat. tit. 12A § 2-723

Current through Laws 2024, c. 378.

Section 2-723 - Proof of Market Price: Time and Place

(1) If an action based on anticipatory repudiation comes to trial before the time for performance with respect to some or all of the goods, any damages based on market price (Section 2-708 or Section 2-713) shall be determined according to the price of such goods prevailing at the time when the aggrieved party learned of the repudiation.

(2) If evidence of a price prevailing at the times or places described in this article is not readily available the price prevailing within any reasonable time before or after the time described or at any other place which in commercial judgment or under usage of trade would serve as a reasonable substitute for the one described may be used, making any proper allowance for the cost of transporting the goods to or from such other place.

(3) Evidence of a relevant price prevailing at a time or place other than the one described in this article offered by one party is not admissible unless and until he has given the other party such notice as the court finds sufficient to prevent unfair surprise.

Okla. Stat. tit. 12A, § 2-723

Laws 1961 p. 101, § 2-723.

Oklahoma Code Comment

(1) There are no previous Oklahoma decisions. This changes the rule as previously stated in Williston On Sales, Section 587, which says that when an action for anticipatory breach comes to trial before performance date the measure of damages is the difference between the contract price and the market value at the date fixed in the contract for performance. Thus, the jury must speculate by attempting to predict what the future market value will be. The Commercial Code rule is more certain and far easier to apply. It must be remembered, too, that the seller can sell the goods under Section 2-706 , and thereby affix damages, and the buyer may "cover" under Section 2-711 and affix damages.

By implication of the language of this statute, the measure of damages for anticipatory breach, when the case comes to trial after performance date, which will usually be the case, is governed by the other sections: (1) If the action is brought by the seller for the buyer's repudiation, damages are measured as of the time and place for tender under Section 2-708 ; (2) If the action is brought by the buyer for the seller's breach, damages are determined at the time the buyer learns of the breach [ Section 2-708 ] which, of course, is consistent with Section 2-723 . However, in most instances the buyer will not actually learn of the breach until date of delivery. If he learns of the buyer's repudiation before date of delivery, it becomes thereby an anticipatory breach.

(2) and (3) There are no previous Oklahoma decisions. These sections establish rules for determining damages when there is no readily available evidence of the market price at the time and place of breach. It is assumed by the wording of this section and the caption thereof that this is applicable to all cases of an action for damages for breach, and not merely when the action is founded upon an anticipatory breach within paragraph (1).