《美国统一商法典》中的买方救济

第一节　《美国统一商法典》中的买方救济

《美国统一商法典》§ 2－711作为买方救济的总论，提供了买方救济的框架结构。其中包括:

第一种情况，根据§ 2－711(1)可以拒收货物， “Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved，and with respect to the whole if the breach goes to the whole contract(Section 2－612)，the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid”。

在拒收货物的同时买方可以“(a)“cover”and have damages under the next section as to all the goods affected whether or not they have been identified to the contract;or(b)recover damages for non-delivery as provided in this Article(Section 2－713)”。

其中，(a)款所指的买方购进替代货物的情况是§ 2－712所规定的“(1)After a breach within the preceding section the buyer may“cover”by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller”。买方所要求的损失是“(2)The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined(Section 2－715)，but less expenses saved in consequence of the seller's breach”。

第二种情况，根据§ 2－711(2)可以要求获得货物， “(a)if the goods have been identified recover them as provided in this Article(Section 2－502);or(b)in a proper case obtain specific performance or replevy the goods as provided in this Article(Section 2－716)”。

在§ 2－711所规定的框架之外，在买方接受货物的情况下，买方可以根据§ 2－714要求损害赔偿，其中包括，根据(1)“Where the buyer has accepted goods and given notification ［subsection(3)of Section 2－607］he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable”。对于卖方违反担保所造成的损失，计算方法是“the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted，unless special circumstances show proximate damages of a different amount”。

在特定情况下买方还可以根据§ 2－715要求其他损失和间接损失。其他损失指“(1)Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection，receipt，transportation and care and custody of goods rightfully rejected，any commercially reasonable charges，expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.”。间接损失指“(a)any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise;and(b)injury to person or property proximately resulting from any breach of warranty”。

买方根据§ 2－716所可能要求的实际履行是英美衡平法上的一种救济方式，在英美法中作为一种特殊的救济方式而存在。实际履行指在一方当事人违约时，另一方当事人要求其根据合同约定履行合同义务。在英美法中，传统上以金钱赔偿为原则，实际履行作为一种例外的、衡平法上的救济。实际履行是衡平法院为了弥补金钱赔偿这一补救方法在特殊情况下的不足而逐渐采取的。根据英美法的原则，一般只有在金钱赔偿不能足以补偿受害人的损失时，法官才会判决违约人实际履行合同义务。所谓“金钱赔偿不适当”，主要是指两类情况:一是受害人所遭受的损失无法用金钱计算;二是受害人无法通过其他替代的途径实现其合同目标。但是，即使这样，法院也并无义务必须作出实际履行的判决。

统一商法典§ 2－716所允许的使用实际履行的情况包括“where the goods are unique or in other proper circumstances”。实际履行的形式包括“specific performance may include such terms and conditions as to payment of the price，damages，or other relief as the court may deem just”。

案例27

Mississippi Chemical Corporation

v.Dresser-Rand Company

(287 F.3d 359)March 29， 2002.

E.GRADY JOLLY，Circuit Judge:

MCC produces ammonia at its fertilizer plant in Yazoo City，Mississippi.For the most part，the ammonia is used as an input in fertilizer—a small amount is sold on the market or stored in inventory for future use.The production of ammonia involves the compression of gas in a compressor train.Each train consists of，among other things，a low case and a high case compressor.

In 1989，in an effort to increase its ammonia production，MCC bought a specially designed compressor train from Dresser.The sales contract for the train contained an express warranty guaranteeing that the train would be free from defects and comport with certain technical specifications.As an exclusive remedy for the breach of this warranty，Dresser offered to correct promptly any defect at its own expense.

In April 1990，the high case compressor broke.MCC notified Dresser of the problem and shipped the high case compressor to New Orleans for repair.Dresser supplied a redesigned compressor and assured MCC that this new compressor would cure all the defects in the train.

In December 1992， however， MCC began to experience excessive vibrations in the low case compressor.In May 1993，these vibrations became sufficiently severe to require a reduction in the speed of the compressor train.This reduction resulted in a loss of ammonia production.

In September 1993，Dresser identified a fracture in a component(the 7th stage impeller)of the low case compressor as the cause of the vibration problem and recommended a modification of that component.In December 1993 and again in November-December 1996，similar vibration problems were identified in the other components of the low case compressor(specifically，the 4th， 5th，and 6th stage impellers)．Dresser agreed to inspect and modify these components.

In December 1996，Dresser advised MCC that similar repairs would have to be made to the impeller components of the high case compressor.

In March 1997，MCC filed suit for breach of the express warranty，breach of the implied warranties of merchantability and fitness for a particular purpose，and negligent design..

At trial，MCC put on evidence of the damages resulting from the lost production of ammonia during the three different periods when the compressor train was malfunctioning.The periods were:(1)May 17，1993 to September 17， 1993;(2)December 17，1993 to August 31，1994;and(3)November 25， 1996 to February 25， 1997.For the most part，during each of these three periods the compressor train continued to produce ammonia，albeit at a diminished rate.

MCC's damage calculation—which was accepted in whole by the jury—consisted of a three-step process:First，MCC * 370 computed the profit per unit of ammonia during each of the three malfunctioning periods.［FN10］Second，it estimated the quantity of ammonia lost in each malfunctioning period because of the reduction in the speed of the compressor train.Finally，it multiplied the profit per unit by the number of units lost to come up with the total amount of damages(i.e.，lost profits)caused by the malfunctioning compressor train.

Dresser contends that this lost profit calculation is incorrect because MCC used the market price to compute the profit per unit even though the majority of MCC's ammonia production was，in fact，used as inputs into other products(e.g.，fertilizer)．We do not find this argument persuasive.

The market price is a reasonably good proxy for the lost ammonia's value as an input.To be sure，we can think of no better proxy.After all，if the ammonia's value to MCC as an input was less than the market value，one assumes that MCC would have sold all of the ammonia it manufactured on the open market，which it did not.

Therefore，throughout the rest of our analysis of the damage issue，we ignore the fact that much of the ammonia production lost because of the malfunctioning compressor train was destined for use as an input.

Dresser lodges two objections to this damage calculation.First，it suggests that because MCC dipped into other sources of ammonia(e.g.，its existing inventory，its production from its Donaldsonville plant，and the open market ［FN11 ］)to make up for the lost production from the malfunctioning compressor train，its damages should be limited to the replacement cost of these substitute sources.Dresser refers to these substitute sources in UCC parlance as “cover， ”and contends that it is entitled to judgment as a matter of law because MCC offered no evidence concerning the value of this“cover.”

Second，Dresser argues that the district court erred in admitting the testimony of Tim Sterling(the person whose testimony primarily supported MCC's damage calculation)because he had no personal knowledge of the facts underlying his testimony.Without Sterling's testimony，Dresser concludes，the jury could not have arrived at the same verdict.

We first address Dresser's argument on the substantive merits of the damage award and then proceed to its evidentiary argument.Throughout our analysis，we must keep in mind that the crux of Dresser's challenge is to the sufficiency of the evidence supporting the damage award.

“［T］he point of an award of damages，whether it is for breach of contract or for a tort，is，so far as possible，to put the victim where he would have been had the breach or tort not taken place.”Chronister Oil Co.v.Unocal Refining and Marketing(Union Oil Co.of California)，34 F.3d 462，464(7th Cir.1994)(Posner，C.J.)(citation omitted)．This general principle serves as the focal point of the appropriate measure of damages as we work our way through applicable provisions of the Mississippi UCC.

In the event of a breach of warranty，a buyer may seek direct，incidental，and consequential damages.MISS.CODE ANN.§ 75－2－714.Here，the jury was only instructed on—and presumably only awarded—*371 consequential damages.We therefore restrict our attention to consequential damages and do not consider any direct damages caused by the breach of the express warranty.

Under the Mississippi UCC ，“consequential damages”include:

(a)Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise;and

(b)Injury to person or property proximately resulting from any breach of warranty.

Under Mississippi law，lost profits are recoverable as consequential damages if three requirements are met:(1)the seller had reason to know at the time of contracting that if he breached the contract，the buyer would be deprived of those profits—i.e.，the lost profits were foreseeable;(2)the lost profits are reasonably ascertainable;［FN12］and(3)the lost profits could not have been reasonably prevented.See Massey-Ferguson，Inc.v.Evans，406 So.2d 15， 19(Miss.1981)．

The first requirement，foreseeability，requires that the breaching party，at the time of contracting，have reason to know that such “lost profits”were possible.See Id.(internal citation omitted)．Foreseeability is to a large extent a notice requirement that requires buyers—at the time of contracting—to disclose the potential extent of their damages or forfeit the right to claim such damages upon breach.Such notice is critical because it ensures that the “contracted for”price reflects the entire scope of the risk(i.e.，the potential liability for breach)that the seller has agreed to bear.See RICHARD A.POSNER，ECONOMIC ANALYSIS OF LAW 141(5th ed.Aspen 1998)．

Whether damages are reasonably foreseeable is a finding of fact within the province of the jury.See Migerobe，Inc.v.Certina USA，Inc.，924 F.2d 1330， 1338(5th Cir.1991)．Here，the jury heard evidence that(1)Dresser knew if the compressor train malfunctioned the ammonia plant would have to be shut-down;(2)Dresser knew that ammonia was necessary for the production of MCC products;and(3)in the past Dresser's predecessors in interest had made—and serviced—compressor trains for MCC.From this evidence，a reasonable jury could draw the conclusion that the lost profits from the lost production of ammonia were“reasonably foreseeable.”

Dresser further contends that because MCC's damage calculation was based on expected production rates of 1402 tpd for the first claim period， 1531 tpd for the second claim period，and 1521 tpd for the third claim period，the jury could not have adopted—as a matter of law—MCC's damage calculation.

The jury heard evidence that the compressors in the compressor train were designed to run at 10 800 rpm(revolutions per minute)．During the malfunctioning periods，the jury heard evidence that the compressors ran at a slower rpm.The jury also heard evidence that when the train functioned normally，that is，the compressors functioned at the designed 10 800 rpm，the plant produced more than 1400 tpd.Based on this evidence，a reasonable jury could have concluded that Dresser should have foreseen that malfunctioning compressors would run at lower rpm's，resulting in a reduction in ammonia production.This is the only conclusion with respect to foreseeability that the jury had to reach to adopt MCC's damage calculation.

We now turn to the “cover”requirement necessary for the recovery of “lost profits.”As noted above，Dresser argues that MCC's damages should be limited to the value of the substitute ammonia it secured to replace the diminished production by the compressor train.Under Section 715(2 )consequential damages are restricted to those damages “which could not be prevented by cover or otherwise.”MISS.CODE ANN.§ 75－2－715.This “cover”requirement imposes on the buyer a duty to mitigate his damages.Comment 2 UCC § 2－715.When dealing with lost profits，this duty means that a buyer“cannot recover for losses he reasonably could have prevented.”

Dresser cites a number of cases for the proposition that because MCC covered by securing alternative ammonia，its damages are limited to the cost of that cover.This argument does not reflect the law in Mississippi for the recovery of lost profits.To reiterate，the applicable law provides that the buyer can only recover for the lost profits he“could not have prevented by cover or otherwise.”MISS.CODE ANN.§ 75－2－715(2)(a)．If the buyer chooses not to cover，(i.e.，mitigate his damages)and cover would have prevented the lost profits，the buyer cannot recover for lost profits.See H ＆ W Indus.，Inc.v.Occidental Chemical Corp.， 911 F.2d 1118， 1123 n.9(5th Cir.1990)(“Failure to cover does not deprive the buyer of all remedies but he may not recover consequential damages.”);Dura-Wood Treating Co.v.Century Forest Indus.， Inc.， 675 F.2d 745， 755(5th Cir.)(“The so-called loss of potential profits could have reasonably been prevented by a different form of cover or otherwise.In the absence of such preventive measures，the district court's award of consequential damages ...is not authorized ［.］”)，cert.denied， 459 U.S.865，103 S.Ct.144，74 L.Ed.2d 122(1982)．In short，this“duty to mitigate”restriction on the award of lost profits has nothing to do with the actual cost of the cover.

To recognize that“cover， ”as argued by Dresser，is not mitigation of lost profits in this case，one must understand that the substitute sources of ammonia—that is，ammonia from inventory—represented a profit opportunity for MCC.It makes no ultimate difference whether the jury measured the damages as it did here or as Dresser argues the jury should have measured the damages—i.e.，by computing the value of the ammonia units procured from MCC's own inventory.The ammonia was completely fungible.Because MCC had to make up for the lost ammonia production by dipping into its own inventory，it had fewer total units of ammonia.The jury heard evidence about the fewer number of units.It also heard evidence concerning the value(in terms of profits)of each of these units.The jury multiplied these two terms together to come up with the amount of lost profits.This award places MCC in the same position as it would have been but for the breach of warranty—that is，if MCC had not had to dip into its own inventory.As noted earlier，this is the precise point of a contract damage award.

Accordingly，the damage award was not—under de novo review of the legal issues involved—incorrect.Moreover，insofar as Dresser challenges the sufficiency of the evidence supporting the award，a reasonable jury，drawing all inferences in favor of MCC，could have determined the amount of damages as awarded in this case.In sum，the award complied with the three requirements necessary to recover“lost profits”as consequential damages under Mississippi law.Accordingly，the district court did not err by denying Dresser's motions for remittitur，a new trial，or judgment as matter of law based on an alleged misguided damage calculation.

AFFIRMED.

思考题

1.简述本案基本事实。

2.本案中MCC所要求的损害赔偿是如何计算的?

3.Dresser是否同意这种计算方式，理由是什么?

4.作为间接损失的利润可以索赔的条件是什么?

5.本案是否满足了关于利润索赔的可预见性要求?

6.本案中的利润损失是否是可以避免的?

案例28

T.W.Oil，Inc.v.Consolidated

Edison Co.of New York，Inc.

57 N.Y.2d 574 1982.

Fuchsberg，J.

I

In the first case to wend its way through our appellate courts on this question，we are asked，in the main，to decide whether a seller who，acting in good faith and without knowledge of any defect，tenders nonconforming goods to a buyer who properly rejects them，may avail itself of the cure provision of subdivision(2)of section 2－508 of the Uniform Commercial Code.We hold that，if seasonable notice be given，such a seller may offer to cure the defect within a reasonable period beyond the time when the contract was to be performed so long as it has acted in good faith and with a reasonable expectation that the original goods would be acceptable to the buyer.

The factual background against which we decide this appeal is based on either undisputed proof or express findings at Trial Term.In January，1974，midst the fuel shortage produced by the oil embargo，the plaintiff(then known as Joc Oil USA，Inc.)purchased a cargo of fuel oil whose sulfur content was represented to it as no greater than 1%.While the oil was still at sea en route to the United States in the tanker M T Khamsin， plaintiff received a certificate from the foreign refinery at which it had been processed informing it that the sulfur content in fact was 0.52% .Thereafter，on January 24，the plaintiff entered into a written contract with the defendant(Con Ed)for the sale of this oil.The agreement was for delivery to take place between January 24 and January 30，payment being subject to a named independent testing agency's confirmation of quality and quantity.The contract，following a trade custom to round off specifications of sulfur content at，for instance，1% ，0.5% or 0.3% ，described that of the Khamsin oil as 0.5% .In the course of the negotiations，the plaintiff learned that Con Ed was then authorized to buy and burn oil with a sulfur content of up to 1% and would even mix oils containing more and less to maintain that figure.

When the vessel arrived，on January 25，its cargo was discharged into Con Ed storage tanks in Bayonne，New * 578 Jersey.In due course，the independent testing people reported a sulfur content of 0.92%.On this basis，acting within a time frame whose reasonableness is not in question，on February 14 Con Ed rejected the shipment.Prompt negotiations to adjust the price failed;by February 20，plaintiff had offered a price reduction roughly responsive to the difference in sulfur reading，but Con Ed，though it could use the oil，rejected this proposition out of hand.It was insistent on paying no more than the latest prevailing price，which，in the volatile market that then existed，was some 25% below the level which prevailed when it agreed to buy the oil.

The very next day，February 21，plaintiff offered to cure the defect with a substitute shipment of conforming oil scheduled to arrive on the S.S.Appollonian Victory on February 28.Nevertheless，on February 22，the very day after the cure was proffered，Con Ed，adamant in its intention to avail itself of the intervening drop in prices，summarily rejected this proposal too.The two cargos were subsequently sold to third parties at the best price obtainable，first that of the Appollonian and，sometime later，after extraction from the tanks had been accomplished，that of the Khamsin.［FN3］

There ensued this action for breach of contract，which，after a somewhat unconventional trial course，resulted in a nonjury decision for the plaintiff in the sum of $ 1 385 512.83，essentially the difference between the original contract price of $ 3 360 667.14 and the amount received by the plaintiff by way of resale of the Khamsin oil at what the court found as a matter of fact was a negotiated * 579 price which，under all the circumstances，was reasonably procured in the open market.To arrive at this result，the Trial Judge，while ruling against other liability theories advanced by the plaintiff，which，in particular，included one charging the defendant with having failed to act in good faith in the negotiations for a price adjustment on the Khamsin oil(Uniform Commercial Code，§ 1－203)，decided as a matter of law that subdivision(2)of section 2－508 of the Uniform Commercial Code was available to the plaintiff even if it had no prior knowledge of the nonconformity.Finding that in fact plaintiff had no such belief at the time of the delivery，that what turned out to be a 0.92% sulfur content was“within the range of contemplation of reasonable acceptability”to Con Ed，and that seasonable notice of an intention to cure was given，the court went on to hold that plaintiff's“reasonable and timely offer to cure”was improperly rejected(sub nom.Joc Oil USA v Consolidated Edison Co.of N.Y.，107 Misc 2d 376，390 ［Shanley N.Egeth，J.］)．The Appellate Division having unanimously affirmed the judgment entered on this decision，the case is now here by our leave(CPLR 5602，subd ［a］，par 1，cl ［i］)．

In support of its quest for reversal，the defendant now asserts that the trial court erred(a)in ruling that the verdict on a special question submitted for determination by a jury was irrelevant to the decision of this case，(b)in failing to interpret subdivision(2)of section 2－508 of the Uniform Commercial Code to limit the availability of the right to cure after date of performance to cases in which the seller knowingly made a nonconforming tender and(c)in calculating damages on the basis of the resale of the nonconforming cargo rather than of the substitute offered to replace it.For the reasons which follow，we find all three unacceptable.

II

We turn then to the central issue on this appeal:Fairly interpreted，did subdivision(2)of section 2－508 of the * 582 Uniform Commercial Code require Con Ed to accept the substitute shipment plaintiff tendered? In approaching this question，we，of course，must remember that a seller's right to cure a defective tender， as allowed by both subdivisions of section 2－508，was intended to act as a meaningful limitation on the absolutism of the old perfect tender rule， under which， no leeway being allowed for any imperfections，there was，as one court put it，just“no room ＊＊＊ for the doctrine of substantial performance”of commercial obligations(Mitsubishi Goshi Kaisha v Aron ＆ Co.，16 F2d 185，186 ［Learned Hand，J.］;see Note，Uniform Commercial Code，§ 2－508;Seller's Right to Cure Non-Conforming Goods， 6 Rutgers—Camden LJ 387－388)．

In contrast，to meet the realities of the more impersonal business world of our day，the code，to avoid sharp dealing，expressly provides for the liberal construction of its remedial provisions(§ 1－102)so that “good faith”and the “observance of reasonable commercial standards of fair dealing”be the rule rather than the exception in trade(see § 2－103，subd ［1］，par ［b］)，“good faith”being defined as “honesty in fact in the conduct or transaction concerned”(Uniform Commercial Code，§ 1－201，subd［19］)．As to section 2－508 in particular， the code's Official Comment advises that its mission is to safeguard the seller“against surprise as a result of sudden technicality on the buyer's part”(Uniform Commercial Code，§ 2－106，Comment 2;see，also，Peters，Remedies for Breach of Contracts Relating to the Sale of Goods under the Uniform Commercial Code:A Roadmap for Article Two， 73 Yale LJ 199， 210;51 NY Jur，Sales，§ 101，p 41)．

Section 2－508 may be conveniently divided between provisions for cure offered when“the time for performance has not yet expired”(subd ［1］)，a precode concept in this State(Lowinson v Newman， 201 App Div 266)，and ones which，by newly introducing the possibility of a seller obtaining “a further reasonable time to substitute a conforming tender”(subd ［2］)，also permit cure beyond the date set for performance.In its entirety the section reads as follows:

“(1)Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired，the seller may seasonably notify the buyer * 583 of his intention to cure and may then within the contract time make a conforming delivery.”

“(2)Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.”

Since we here confront circumstances in which the conforming tender came after the time of performance，we focus on subdivision(2)．On its face，taking its conditions in the order in which they appear，for the statute to apply(1)a buyer must have rejected a nonconforming tender，(2)the seller must have had reasonable grounds to believe this tender would be acceptable(with or without money allowance)，and(3 )the seller must have “seasonably”notified the buyer of the intention to substitute a conforming tender within a reasonable timeEssentially a factual matter，“seasonable”is defined in subdivision(3)of section 1－204 of the Uniform Commercial Code as“at or within the time agreed or if no time is agreed at or within a reasonable time”.At least equally factual in character，a “reasonable time”is left to depend on the“nature，purpose and circumstances”of any action which is to be taken(Uniform Commercial Code，§ 1－204，subd ［2］)．

In the present case，none of these presented a problem.The first one was easily met for it is unquestioned that， at 0.92%， the sulfur content of the Khamsin oil did not conform to the 0.5% specified in the contract and that it was rejected by Con Ed.The second，the reasonableness of the seller's belief that the original tender would be acceptable，was supported not only by unimpeached proof that the contract's 0.5% and the refinery certificate's 0.52% were trade equivalents，but by testimony that，by the time the contract was made，the plaintiff knew Con Ed burned fuel with a content of up to 1% ，so that，with appropriate price adjustment，the Khamsin oil would have suited its needs even if，at delivery，it was，to the plaintiff's surprise，to test out at 0.92%.Further，the matter seems to have been put beyond dispute by the defendant's readiness to take the oil at the reduced market price on February 20.Surely，on such a record，the trial court cannot be faulted for having found as a fact that the second condition too had been established.

As to the third， the conforming state of the Appollonian oil is undisputed，the offer to tender it took place on February 21，only a day after Con Ed finally had rejected the Khamsin delivery and the Appollonian substitute then already was en route to the United States，where it was expected in a week and did arrive on March 4，only four days later than expected.Especially since Con Ed pleaded no prejudice(unless the drop in prices could be so regarded)，it is almost impossible，given the flexibility of the Uniform Commercial Code definitions of “seasonable”and“reasonable”(n 7，supra.;)，to quarrel with the finding that the remaining requirements of the statute also had been met.

Thus lacking the support of the statute's literal language，the defendant nonetheless would have us limit its application to cases in which a seller knowingly makes a nonconforming tender which it has reason to believe the buyer will accept.For this proposition，it relies almost entirely on a critique in Nordstrom，Law of Sales(§ 105)，which rationalizes that，since a seller who believes its tender is conforming would have no reason to think in terms of a reduction in the price of the goods， to allow such a seller to cure after the time for performance had passed would make the statutory reference to a money allowance redundant.Nordstrom，interestingly enough，finds it useful to buttress this position by the somewhat dire prediction， though backed by no empirical or other confirmation，that，unless the right to cure is confined to those whose nonconforming tenders are knowing ones，the incentive of sellers to timely deliver will be undermined.To this it also adds the somewhat moralistic note that a seller who is mistaken as to the quality of its goods does not merit * 585 additional time(Nordstrom， loc.cit.)．Curiously，recognizing that the few decisions extant on this subject have adopted a position opposed to the one for which it contends，Con Ed seeks to treat these as exceptions rather than exemplars of the rule(e.g.，Wilson v Scampoli，228 A2d 848［DC App］［goods obtained by seller from their manufacturer in original carton resold unopened to purchaser;seller held within statute though it had no reason to believe the goods defective］;Appleton State Bank v Lee，33 Wis 2d 690 ［seller mistakenly delivered sewing machine of wrong brand but otherwise identical to one sold;held that seller，though it did not know of its mistake，had a right to cure by substitution］)．

That the principle for which these cases stand goes far beyond their particular facts cannot be gainsaid.These holdings demonstrate that，in dealing with the application of subdivision(2)of section 2－508，courts have been concerned with the reasonableness of the seller's belief that the goods would be acceptable rather than with the seller's pretender knowledge or lack of knowledge of the defect(Wilson v Scampoli，supra.;compare Zabriskie Chevrolet v Smith， 99 NJ Super 441)．

It also is no surprise then that the afore-mentioned decisional history is a reflection of the mainstream of scholarly commentary on the subject.White and Summers，for instance，put it well，and bluntly.Stressing that the code intended cure to be “a remedy which should be carefully cultivated and developed by the courts”because it“offers the possibility of conforming the law to reasonable expectations and of thwarting the chiseler who seeks to escape from a bad bargain”(op cit ，at pp 322－324)，the authors conclude，as do we，that a seller should have recourse to the relief afforded by subdivision(2)of section 2－508 of the Uniform Commercial Code as long as it can establish that it had reasonable grounds，tested objectively，for its belief that the goods would be accepted(ibid.，at p 321)．It goes without saying that the test of reasonableness，in this context，must encompass the concepts of“good faith”and“commercial standards of fair dealing”which permeate the code(Uniform Commercial Code， § 1－201，subd ［19］;§ § 1－203， 2－103，subd ［1］，par ［b］)．

III

As to the damages issue raised by the defendant，we affirm without reaching the merits.At no stage of the proceedings before the trial court did the defendant object to the plaintiff's proposed method for their calculation，and this though the plaintiff gave ample notice of that proposal by means of a preliminary statement and pretrial memorandum filed with the court.So complete was defendant's acquiescence in the theory thus advanced that the plaintiff was permitted to introduce its proof of the Khamsin resale alone，and without opposition.Furthermore，in consensually submitting the four jointly framed advisory questions that went to the jury，the language of one of them，which was damages-related，indicates that both parties were * 587 acting on the assumption that the Khamsin oil was the one with which the court was to be concerned.And，even after the decision at nisi prius revealed that the Judge had acted on such an assumption，so far as the record shows，no motion was ever made to correct it.

It has long been the law that agreement on a theory of damages at trial，even if only implied，must control on appeal(see Martin v City of Cohoes，37 NY2d 162，165－166，supra.;Hartshorn v Chaddock，135 NY 116，123;10 Carmody-Wait 2d，NY Prac，§ 70:419，p 690)．

For all these reasons，the order of the Appellate Division should be affirmed，with costs.

Chief Judge Cooke and Judges Jasen，Gabrielli，Jones，Wachtler and Meyer concur.

Order affirmed.

思考题

1.简述本案基本事实。

2.Trial court的判决是什么?

3.被告上诉的理由是什么?

4.2－508(2)的适用条件是什么?

5.在适用本案事实时法官得出的结论是什么?

6.被告的其他主张是什么，法官对此的判决理由是什么?

7.被告的恶意体现在哪些方面?

案例29

Design Plus Store Fixtures，Inc．v．Citro Corp．

508 S．E．2d 825(N．C．App．1998)

Plaintiff，Design Plus Store Fixtures，Inc．，(Design)，entered into a contract with defendant，Citro Corporation(Citro)，to buy display tables in three installments to be delivered to Design's primary customer，Springmaid，in Oregon，Kansas，and New Mexico．? Citro sub-contracted with the third party defendant，Decolam，Inc．，(Decolam)，to“edge-tape”and bore holes in the parts according to plaintiff's specifications and a pattern approved by Citro．

The tables for the first two orders were delivered late，and a number of non-conformities made the tables impossible to assemble．When Design notified Citro of the defects，Citro offered no cure．Despite the non-conformities，Design eventually re-drilled the holes and assembled the tables．Design consummated the sale to Springmaid with the understanding that the tables would ultimately be replaced．Design covered the cost of the replacement tables，and refused to pay Citro for the defective tables．After Design provided replacement tables to Springmaid，Design gave the defective tables to charity．Design canceled the New Mexico installment after the table parts were cut and before they were bored or taped．

Design sued for expenses incurred due to Citro's breach．Citro counterclaimed for breach of contract and unjust enrichment，and filed a third party complaint against Decolam for breach of warranties and contract．The trial court found that Design had accepted the goods and awarded Citro $ 19 404.00 as damages for Design's breach of contract，less $ 18 420.17，which the court offset as Design's damages occasioned by Citro's breach of warranty．The trial court also awarded Citro $ 9 404.64 as damages for Design's anticipatory repudiation of the New Mexico installment，and awarded Citro $ 7 407.84 for Decolam's breach of subcontract and breach of warranty．Plaintiff Design and third party defendant Decolam appeal．

I．Plaintiff's Assignments of Error

A．Acceptance of Oregon and Kansas Installments

Initially，Design properly rejected the tables by providing reasonable notice of the nonconformity to Citro．Rejection of an installment，under section 2－612，is appropriate only if “the nonconformity substantially impairs the value of that installment．．．．”N．C．Gen．Stat．§ 25－2－612(2)(1995)．A proper rejection also requires(1)rejection within a reasonable time after delivery or tender，and(2)seasonable notice to seller．N．C．Gen．Stat．§ 25－2－602(1995);HPS，Inc．v．All Wood Turning Corp．，21 N．C．App．321， 204 S．E．2d 188(1974)．The trial court found that the non-conformities“made it impossible to properly assemble the table， ”and that this constituted a substantial impairment，justifying rejection of the installments．The trial court also noted that Design“arguably communicated a valid intent to reject the goods to ［Citro］．”Design notified Citro of significant non-conformities on 10 November 1993;and after Citro made no offer to cure the defects，Design refused to pay for the defective tables on 21 November 1993．Thus，Design's actions after discovery of the non-conformities were consistent with a rightful rejection of the tables．Nevertheless，the trial court concluded that Design had accepted the tables by actions “inconsistent with ［Citro's］ownership， ”including:consummating the sale of the tables to Springmaid with concessions，and “failure to replace the Oregon tables for eleven months and the Kansas tables for nineteen months，and the Plaintiff's disposal of the tables after their replacement without notifying or attempting to obtain the consent”of Citro．

“Acceptance of goods occurs when the buyer ．．．does any act inconsistent with the seller's ownership;but if such act is wrongful against the seller，it is an acceptance only if ratified by him．”N．C．Gen．Stat．§ 25－2－606(1)(c)(1995 )．“Acts inconsistent with the seller's ownership”can best be understood in light of the buyer's statutory options and duties with respect to rightfully rejected non-conforming goods．The buyer's options and duties upon rejection are described in G．S．§ § 25－2－602 to－604(1995)．For most buyers，there is a general duty to hold goods with reasonable care“for a time sufficient to permit the seller to remove them．”N．C．Gen．Stat．§ 25－2－602(2)(b)(1995)．Merchant buyers have a more specific duty when the seller has no agent or place of business in the market of rejection:

a merchant buyer is under a duty after rejection of goods in his possession or control to follow any reasonable instructions received from the seller with respect to the goods and in the absence of such instructions to make reasonable efforts to sell them for the seller's account if they are perishable or threaten to decline in value speedily．

In this case，Design is a merchant dealing in tables，G．S．§ 25－2－104(1)(“‘Merchant’ means a person who deals in goods of the kind．．．”);and Citro had no place of business or agent in the markets of rejection，Oregon and Kansas．In addition，the tables are not “perishables”such that“the value of the goods is threatened and the seller's instructions do not arrive in time to prevent serious loss．”N．C．Gen．Stat．§ 25－2－603(1)Official U．C．C．Comment 1(1995)．Thus Design's duty，upon rejection，was to follow Citro's reasonable instructions with respect to Citro's tables．However，no instructions from Citro were forthcoming．

Absent such instructions，the statute presents three options for a buyer who has given reasonable notification rejecting non-conforming goods:(1)store the rejected goods on the seller's account，(2)re-ship them to seller，or(3)resell them on the seller's account with reimbursement for expenses incurred in caring for and selling them．N．C．Gen．Stat．§ 25－2－604(1995)．These potential courses of action are“intended to be not exhaustive but merely illustrative．”N．C．Gen．Stat．§ 25－2－604 Official U．C．C．Comment 1(1995)．

The basic purpose of this section is twofold:on the one hand it aims at reducing the stake in dispute and on the other at avoiding the pinning of a technical“acceptance”on a buyer who has taken steps towards realization on or preservation of the goods in good faith．

N．C．Gen．Stat．§ 25－2－604 Official U．C．C．Comment(1995);see generally，Frank's Maintenance ＆ Engineering，Inc．，v．C．A．Roberts Co．， 86 Ill．App．3d 980，987，42 Ill．Dec．25，408 N．E．2d 403，408(1980)(“In determining whether a buyer has so wrongfully exercised ownership over goods as to be barred from rejecting them，court must apply rule of reasonableness．”)

A merchant buyer in possession of rejected goods，and without instructions from the seller，is in the somewhat difficult position of having a choice of reasonable options but no clear affirmative duties with respect to those goods，G．S．§ 25－2－604;yet，the buyer must avoid acts“inconsistent with the seller's ownership”in order to avoid accepting the non-conforming goods．N．C．Gen．Stat．§ 25－2－606(1)(c)(1995)．The issue is whether Design's actions constitute good faith steps toward “realization on or preservation of the goods， ”on the one hand，or “acts inconsistent with ownership”on the other．Compare，N．C．Gen．Stat．§ 25－2－604 Official U．C．C．Comment(1995)and N．C．Gen．Stat．§ 25－2－606(1)(c)(1995)．Whether actions taken with respect to rejected nonconforming goods，beyond those suggested by statute，are “inconsistent with the seller's ownership， ”depends on the circumstances and the buyer's steps towards realization on or preservation of the goods in good faith．

The repair and continued use of the non-conforming，rejected goods constitutes a reasonable good faith effort to preserve the goods while mitigating damages．Accord Hajoca Corp．v．Brooks，249 N．C．10，15，105 S．E．2d 123，127－28(1958)(retention and use of defective machine by purchaser did not waive rejection because“purchaser does not waive his right to rescind the contract for breach of warranty‘where the retention was at the instance and request of the seller and for the benefit of the seller in his endeavors to remedy the defective machine so that it would properly perform the functions for which it was warranted and sold．’ ”)(citation omitted);Davis v．Colonial Mobile Homes， 28 N．C．App．13， 18， 220 S．E．2d 802， 805(1975)，disc．review denied， 289 N．C．613，223 S．E．2d 391(1976)(“The fact that plaintiff stayed in the unit after allegedly revoking or rejecting the unit does not alone necessarily vitiate any of the buyer's rights．”);Romy v．Picker Int'l Inc．， 1992 WL 70403 at 3(E．D．Pa．1992)， affirmed， 986 F．2d 1409(3rd Cir．1993)(“use of nonconforming goods，however，does not constitute，per se，a waiver of revocation;．．．［r］ather，a court will annul a revocation and conclude that a re-acceptance has occurred only where the buyer's actions with respect to the goods are deemed‘unreasonable．’ ”);Fablok Mills，Inc．，v．Cocker Machine ＆ Foundry Co．，125 N．J．Super．251， 257－58， 310 A．2d 491， 494－95，cert．denied， 64 N．J．317， 315 A．2d 405(1973)(“We conceive that in certain situations continued use of goods by the buyer may be the most appropriate means of achieving mitigation，i．e．，where the buyer is unable to purchase a suitable substitute for the goods．”)．

Thus it has been frequently held that under certain circumstances a buyer rejecting goods or revoking his acceptance may continue to use the goods ．．．particularly where such use is a direct result of the oppressive conduct of the seller ．．．or where no prejudice is shown(citations omitted)．

Frank's Maintenance ＆ Engineering，Inc．，v．C．A．Roberts Co．，86 Ill．App．3d 980，986－87，42 Ill．Dec．25，408 N．E．2d 403，408(1980)．

In this case，Citro entered into the contract with the understanding that manufacturing and delivering the tables in a timely manner was necessary to serve Design's primary customer，Springmaid．Citro delivered the tables late，and the tables were defective．According to the trial court's findings of fact，the plaintiff“performed corrective measures”on the tables，and provided them to Springmaid with the understanding they would be replaced and“replacement of the tables could not affect any of the scheduled store openings;”and，Citro “offered neither explanation nor solution．”Design bore the expense of repairing the tables for temporary use by Springmaid．Citro offered no instructions as to the disposal or return of the tables．Under these circumstances，we hold that repairing the tables and allowing Springmaid the continued use of the tables were reasonable actions in good faith and did not constitute acceptance of the tables．

However，after allowing Springmaid the reasonable continued use of the repaired tables，Design gave the nonconforming tables away，contending they had no market value．The trial court concluded，inter alia，that“disposal of the tables after their replacement without notifying or attempting to obtain the consent of ［Defendant］Corporation constituted acceptance of the goods under the code as acts inconsistent with Defendant's ownership．”We agree．

As discussed above，reasonable repair and use of the tables to temporarily satisfy a contract contemplated at the time of the transaction is not inconsistent with ownership;thus those actions did not constitute an acceptance．However，discarding the tables without notifying Citro is an unreasonable act，inconsistent with ownership，where the tables had some salvageable value．

Underlying the issue of acceptance，in this context，is the question of whether Design acted inconsistently，by rejecting the goods and then disposing of these goods as an owner．Giving the tables to charity without notifying Citro was such an act of ownership．

There are some circumstances where it might be reasonable to discard rejected goods when there is no salvageable value．N．C．Gen．Stat．§ 25－2－608， Official U．C．C．Comment 6(1995)(“Worthless goods，however，need not be offered back．．．．”);Askco Engineering Corp．，v．Mobil Chemical Corp．，535 S．W．2d 893(Tex．Civ．App．1976)．In this case，however，the court found that the un-bored，un-edged，parts for the New Mexico installment had a salvage value of $ 15.60 per table;and its finding is supported by the evidence．Plaintiff concedes in its brief that the assembled and used tables of the Kansas and Oregon installments had the same salvage value as the unassembled， un-edged parts of the New Mexico installment;and so these tables were not worthless．Discarding these goods constituted an act inconsistent with Citro's ownership，and so Design is deemed to have accepted the goods．N．C．Gen．Stat．§ § 25－2－606(1)(c)，25－2－604，Official U．C．C．Comment(1995)．We therefore affirm the trial court's conclusion that Design accepted the Kansas and Oregon installments and its award of damages to Citro in the amount of the contract price for those goods，less an offset for damages sustained by Design by reason of the defects．N．C．Gen．Stat．§ 25－2－607(1)(1995)．

B．Cancellation of New Mexico Installment

Design also argues that cancellation of the New Mexico order was justified，because the defects of the first installments substantially impaired the value of the contract as a whole．The trial court concluded，to the contrary，that “［t］he non-conformities with respect to the Oregon and Kansas tables did not substantially impair the value of the whole contract”because Citro，once notified of the defects，could have easily remedied the final installment．The trial court erred in considering the ease of remedying future installments when determining whether past installments impaired the contract as a whole．

“Whenever nonconformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole．”N．C．Gen．Stat．§ 25－2－612(3)(1995)．“Substantial impairment， ”as explained by the official commentary to section 2－612(2)，involves consideration of the quality，quantity，and assortment of goods，as well as the time frame contemplated by the contract．Official U．C．C．Comment 4(1995)．“It must be judged in terms of the normal or specifically known purposes of the contract．”Id．Once a non-conforming installment substantially impairs the installment contract as a whole，the aggrieved party has no duty to provide an opportunity to cure the defects of future installments;rather，the buyer has an immediate right to cancel the entire contract．

Whether the non-conformity in any given installment justifies cancellation as to the future depends，not on whether such non-conformity indicates an intent or that the future deliveries will also be defective，but whether the nonconformity substantially impairs the value of the whole contract．If only the seller's security in regard to future installments is impaired，he has the right to demand adequate assurances and proper future performance but has not an immediate right to cancel the entire contract．It is clear under this Article，however，that defects in prior installments are cumulative in effect，so that acceptance does not wash out the defect“waived．”

N．C．Gen．Stat．§ 25－2－612(2)＆(3)Official U．C．C．Commentary，Comment 6(1995)．

Non-conformities in the Oregon and Kansas installments，individually and cumulatively，substantially impaired the contract as a whole．The tables of the first installments were impossible to assemble and were delivered late．The tables were not usable as delivered to Design．Citro offered no cure of the defects and Design bore the expense of repairing the tables in order to meet a deadline known to both parties．The trial court should not have considered the ease of remedying defects of the future installment when determining whether the past installments substantially impaired the contract as a whole;consequently，the trial court erred in its conclusion of law that plaintiff breached by immediately canceling the whole contract and was liable for damages of$ 9 404.64 for the anticipatory repudiation．We reverse this portion of the trial court's judgment and remand the case for a determination of damages owed by Citro to Design for breach of contract with respect to the New Mexico installment．

思考题

1.请简述本案基本事实。

2.从法律规则的角度看，如何构成买方的接受?

3.从事实角度看，买方是否已经接受了发往Oregon和Kansas的货物?

4.买方是否可以解除发往New Mexico的最后一批货物的合同?

案例30

Plateq Corp.of North Haven v.

Machlett Laboratories，Inc.

456 A.2d 786 Conn.，1983.

PETERS，Judge.

In this action by a seller of specially manufactured goods to recover their purchase price from a commercial buyer，the principal issue is * 435 whether the buyer accepted the goods before it attempted to cancel the contract of sale.The plaintiff，Plateq Corporation of North Haven，sued the defendant，* 787 The Machlett Laboratories， Inc.， to recover damages， measured by the contract price and incidental damages，arising out of the defendant's allegedly wrongful cancellation of a written contract for the manufacture and sale of two leadcovered steel tanks and appurtenant stands.The defendant denied liability and counterclaimed for damages.After a full hearing，the trial court found for the plaintiff both on its complaint and on the defendant's counterclaim.The defendant has appealed.

The trial court，in its memorandum of decision，found the following facts.On July 9， 1976，the defendant ordered from the plaintiff two leadcovered steel tanks to be constructed by the plaintiff according to specifications supplied by the defendant.The parties understood that the tanks were designed for the special purpose of testing x-ray tubes and were required to be radiation-proof within certain federal standards.Accordingly，the contract provided that the tanks would be tested for radiation leaks after their installation on the defendant's premises.The plaintiff undertook to correct，at its own cost，any deficiencies that this post-installation test might uncover The contract incorporated precise specifications in the form of detailed drawings.The drawings for the tank and the tank cover contained specific manufacturing instructions as well as provision 6:“Tank with cover will be tested for radiation leaks after installation.Any deficiencies must be corrected by the vendor.”.The plaintiff had not previously constructed such tanks，nor had the defendant previously designed tanks for this purpose.The contract was amended on August 9，* 436 1976，to add construction of two metal stands to hold the tanks.All the goods were to be delivered to the defendant at the plaintiff's place of business．The purchase order sent by the defendant to the plaintiff stipulated that the goods were to be shipped“F.O.B.Origin.”.

Although the plaintiff encountered difficulties both in performing according to the contract specifications and in completing performance within the time required，the defendant did no more than call these deficiencies to the plaintiff's attention during various inspections in September and early October，1976.By October 11，1976，performance was belatedly but substantially completed.On that date，Albert Yannello，the defendant's engineer，noted some remaining deficiencies which the plaintiff promised to remedy by the next day，so that the goods would then be ready for delivery.Yannello gave no indication to the plaintiff that this arrangement was in any way unsatisfactory to the defendant.Not only did Yannello communicate general acquiescence in the plaintiff's proposed tender but he specifically led the plaintiff to believe that the defendant's truck would pick up the tanks and the stands within a day or two.Instead of sending its truck，the defendant sent a notice of total cancellation which the plaintiff received on October 14，1976.That notice failed to particularize the grounds upon which cancellation was based．The defendant sent the plaintiff a telegram stating :“This order is hereby terminated for your breach，in that you have continuously failed to perform according to your commitment in spite of additional time given you to cure your delinquency.We will hold you liable for all damages incured［sic］by Machlett including excess cost of reprocurement.”.

On this factual basis， the trial court， having concluded that the transaction was a contract for the sale of goods falling within the Uniform Commercial * 437 Code，General Statutes § 42a－2－101 et seq.，considered whether the defendant had accepted the goods.The court determined that the defendant had accepted the tanks，primarily by signifying its willingness to take them despite their nonconformities，in accordance with General Statutes § 42a－2－606(1)(a)，* 788 and secondarily by failing to make an effective rejection，in accordance with General Statutes §42a－2－606(1)(b)．Once the tanks had been accepted，the defendant could rightfully revoke its acceptance under General Statutes§ 42a－2－608 ［FN6］only by showing substantial impairment of their value to the defendant.In part because the defendant's conduct had foreclosed any post-installation inspection，the court concluded that such impairment had not been proved.Since the tanks were not readily resaleable on the open market，the plaintiff was entitled，upon the defendant's wrongful revocation of acceptance，to recover their contract price，minus salvage value，plus interest.General Statutes § § 42a－2－703;42a－2－709(1)(b)．Accordingly，the trial court awarded the plaintiff damages in the amount of $ 14 837.92.

In its appeal，the defendant raises four principal claims of error.It maintains that the trial court erred:(1)in invoking the “cure”section，General Statutes § 42a－2－508，when there had been no tender by the plaintiff seller;(2)in concluding，in accordance with the acceptance section，General Statutes § 42a－2－606(1)，that the defendant had“signified”to the plaintiff its willingness to take the contract goods;(3)in misconstruing the defendant's statutory and contractual rights of inspection;and(4)in refusing to find that the defendant's letter of cancellation was occasioned by the plaintiff's breach.We find no error.

Upon analysis，all of the defendant's claims of error are variations upon one central theme.The * 439 defendant claims that on October 11，when its engineer Yannello conducted the last examination on the plaintiff's premises，the tanks were so incomplete and unsatisfactory that the defendant was rightfully entitled to conclude that the plaintiff would never make a conforming tender.From this scenario，the defendant argues that it was justified in cancelling the contract of sale.It denies that the seller's conduct was sufficient to warrant a finding of tender，or its own conduct sufficient to warrant a finding of acceptance.The difficulty with this argument is that it is inconsistent with the underlying facts * 789 found by the trial court.Although the testimony was in dispute，there was evidence of record to support the trial court's findings to the contrary.The defendant cannot sustain its burden of establishing that a trial court's findings of fact are clearly erroneous;Practice Book§ 3 060D;Pandolphe's Auto Parts，Inc.v.Manchester， 181 Conn.217，221－22，435 A.2d 24(1980);by the mere recitation in its brief of conflicting testimony entirely unsupported by reference to pages of the transcript.Practice Book § 3 060F(b)．There is simply no fit between the defendant's claims and the trial court's finding that，by October 11，1976，performance was in substantial compliance with the terms of the contract.The trial court further found that on that day the defendant was notified that the goods would be ready for tender the following day and that the defendant responded to this notification by promising to send its truck to pick up the tanks in accordance with the contract.

On the trial court's finding of facts， it was warranted in concluding， on two independent grounds，that the defendant had accepted the goods it had ordered from the plaintiff.Under the provisions * 440 of the Uniform Commercial Code，General Statutes § 42a－2－606(1)“acceptance of goods occurs when the buyer(a)after a reasonable opportunity to inspect the goods signifies to the seller ...that he will take ...them in spite of their nonconformity;or(b)fails to make an effective rejection.”General Statutes § 42a－2－606(1)(c)provides a third ground，the exercise of dominion，for finding acceptance but that ground was not considered by the trial court，presumably because it has no apparent factual relevance to the circumstances of this case.

In concluding that the defendant had “signified”to the plaintiff its willingness to“take”the tanks despite possible remaining minor defects，the trial court necessarily found that the defendant had had a reasonable opportunity to inspect the goods.The defendant does not maintain that its engineer，or the other inspectors on previous visits，had inadequate access to the tanks，or inadequate experience to conduct a reasonable examination.It recognizes that inspection of goods when the buyer undertakes to pick up the goods is ordinarily at the seller's place of tender.See General Statutes § § 42a－2－503， 42a－2－507， 42a－2－513;see also White ＆ Summers，Uniform Commercial Code § 3－5(2d Ed.1980)．The defendant argues，however，that its contract，in providing for inspection for radiation leaks after installation of the tanks at its premises，necessarily postponed its inspection rights to that time.The trial court considered this argument and rejected it，and so do we.It was reasonable，in the context of this contract for the special manufacture of goods with which neither party had had prior experience，to limit this clause to adjustments to take place after tender and acceptance.After acceptance， * 441 a buyer may still， in appropriate cases， revoke its acceptance， General Statutes § 42a－2－608，or recover damages for breach of warranty，General Statutes § 42a－2－714.The trial court reasonably concluded that a post-installation test was intended to safeguard these rights of the defendant as well as to afford the plaintiff a final opportunity to make needed adjustments.The court was therefore justified in concluding that there had been an acceptance within § 42a－2－606(1)(a)．A buyer may be found to have accepted goods despite their known nonconformity;McCormick v.Ornstein，119 Ariz.352，355，580 P.2d 1206(Ct.of App.1978);Fred J.Miller，Inc.v.Raymond Metal Products Company， 265 Md.523，527－28，290 A.2d 527(1972);and despite the absence of actual delivery to the buyer;Montana Seeds，Inc.v.Holliday，178 Mont.119，124，582 P.2d 1223(1978);see generally White ＆ Summers，supra，§ 8－2，pp.296－97.

The trial court's alternate ground for concluding that the tanks had been accepted was the defendant's failure to make * 790 an effective rejection.Pursuant to General Statutes § 42a－2－606(1)(b)，an acceptance occurs when，after a reasonable opportunity to inspect， a buyer has failed to make“an effective rejection as provided by subsection(1)of section 42a－2－602.”The latter subsection，in turn，makes a rejection“ineffective unless the buyer seasonably notifies the seller.”General Statutes § 42a－2－605(1)(a)goes on to provide that a buyer is precluded from relying，as a basis for rejection，* 442 upon unparticularized defects in his notice of rejection，if the defects were such that，with seasonable notice，the seller could have cured by making a substituted，conforming tender.The defendant does not question the trial court's determination that its telegram of cancellation failed to comply with the requirement of particularization contained in § 42a－2－605(1)．Instead，the defendant argues that the plaintiff was not entitled to an opportunity to cure，under General Statutes § 42a－2－508，because the plaintiff had never made a tender of the tanks.That argument founders，however，on the trial court's finding that the seller was ready to make a tender on the day following the last inspection by the defendant's engineer and would have done so but for its receipt of the defendant's telegram of cancellation.The trial court furthermore found that the defendant's unparticularized telegram of cancellation wrongfully interfered with the plaintiff's contractual right to cure any remaining post-installation defects.In these circumstances，the telegram of cancellation constituted both a wrongful and an ineffective rejection on the part of the defendant.See Uchitel v.F.R.Tripler ＆ Co.， 107 Misc.2d 310，434 N.Y.S.2d 77， 81－82(Supreme Court 1980);White ＆ Summers，supra，§8－3，p.315.

Once the conclusion is reached that the defendant accepted the tanks，its further rights of cancellation under the contract are limited by the governing * 443 provisions of the Uniform Commercial Code.“The buyer's acceptance of goods，despite their alleged nonconformity，is a watershed.After acceptance，the buyer must pay for the goods at the contract rate;General Statutes § 42a－2－607(1);and bears the burden of establishing their nonconformity.General Statutes § 42a－2－607(4)．”Stelco Industries，Inc.v.Cohen，182 Conn.561，563－64，438 A.2d 759(1980)．After acceptance，the buyer may only avoid liability for the contract price by invoking the provision which permits revocation of acceptance.That provision， General Statutes § 42a－2－608(1)，［FN16］requires proof that the “nonconformity ［of the goods］substantially impairs［their］value to him.”See Superior Wire ＆ Paper Products，Ltd.v.Talcott Tool ＆ Machine，Inc.， 184 Conn.—(42 CLJ 44，pp.4， 6)441 A.2d 43(1981);Conte v.Dwan Lincoln-Mercury，Inc.， 172 Conn.112，120－21，374 A.2d 144(1976)．On this question，which is an issue of fact;Superior Wire ＆ Paper Products，Ltd.v.Talcott Tool ＆Machine，Inc.，supra，184 Conn.at 6－7，441 A.2d 43;Conte v.Dwan Lincoln-Mercury，Inc.，supra，172 Conn.at 121，374 A.2d 144;the trial court again found against the defendant.Since the defendant has provided no basis for any argument that the trial court was clearly erroneous in * 791 finding that the defendant had not met its burden of proof to show that the goods were substantially nonconforming，we can find no error in the conclusion that the defendant's cancellation constituted an unauthorized and hence wrongful revocation of acceptance.

Finally，the defendant in its brief，although not in its statement of the issues presented，challenges the trial court's conclusion about the remedial consequences * 444 of its earlier determinations.Although the trial court might have found the plaintiff entitled to recover the contract price because of the defendant's acceptance of the goods;General Statutes § § 42a－2－703(e)［FN17］and 42a－2－709(1)(a);［FN18］the court chose instead to rely on General Statutes § 42a－2－709(1)(b)，which permits a price action for contract goods that cannot，after reasonable effort，be resold at a reasonable price.［FN19］Since the contract goods in this case were concededly specially manufactured for the defendant，the defendant cannot and does not contest the trial court's finding that any effort to resell them on the open market would have been unavailing.In the light of this finding，the defendant can only reiterate its argument，which we have already rejected，that the primary default was that of the plaintiff rather than that of the defendant.The * 445 trial court's conclusion to the contrary supports both its award to the plaintiff and its denial of the defendant's counterclaim.

There is no error.In this opinion the other Judges concurred.

思考题

1.简述本案基本事实。

2.Trial court的判决理由是什么?

3.被告的上诉理由是什么?

4.双方对于事实的争议是什么?

5.2－606适用的结果是什么?

6.2－608适用的结果是什么?

案例31

Tongish v.Thomas

251 Kan.728， 840 P.2d 471，

20 UCC Rep.Serv.2d 936

McFARLAND，Justice:

This case presents the narrow issue of whether damages arising from the nondelivery of contracted-for sunflower seeds should be computed on the basis of K.S.A.84－1－106 or * 729 K.S.A.84－2－713.That is，whether the buyer is entitled to its actual loss of profit or the difference between the market price and the contract price.The trial court awarded damages on the basis of the buyer's actual loss of profit.The Court of Appeals reversed the judgment，holding that the difference between the market price and the contract price was the proper measure of damages(Tongish v.Thomas，16 Kan.App.2d 809，829 P.2d 916 ［1992］)．The matter is before us on petition for review.

The pertinent facts are as follows.Denis Tongish entered into a contract on April 28，1988，with the Decatur Coop Association(Coop)where Tongish agreed to grow 160 acres of sunflower seeds， said crop to be purchased by Coop at $ 13 per hundredweight for large seeds and $ 8 per hundredweight for small seeds.By agreement，the acreage was subsequently reduced to 116.8 acres.The crop was to be delivered in increments of one-third by December 31，1988，March 31， 1989，and May 31， 1989.

Coop had a contract to deliver the seeds purchased to Bambino Bean ＆Seed，Inc.Coop was to be paid the same price it paid the farmers less a 55 cent per hundredweight handling fee.Coop's only anticipated profit was the handling fee.

In October and November 1988，Tongish delivered sunflower seeds to Coop.In January，a dispute arose over the amount of dockage charged against Tongish's seeds.Tongish's seeds were of higher quality than those of many other farmers selling to Coop，and Coop's practice of commingling seeds prior to sampling was disadvantageous to Tongish.This was resolved by Coop issuing an additional check to Tongish reflecting a lower dockage charge.

Due to a short crop，bad weather，and other factors，the market price of sunflower seeds in January 1989 was double that set forth in the Tongish/Coop contract.On January 13，Tongish notified Coop he would not deliver any more sunflower seeds.

In May 1989，Tongish sold and delivered 82 820 pounds of sunflower seeds to Danny Thomas for approximately $ 20 per hundredweight.Tongish was to receive $ 14 714.89，which was $ 5 153.13 more than the Coop contract price.Thomas paid for approximately one-half of the seeds.Tongish brought this action to collect the balance due.Thomas paid the balance of $ 7 359.61 into court and was ultimately dismissed from the action.

* 730 Meanwhile，Coop intervened in the action，seeking damages for Tongish's breach of their contract.Following a bench trial，the district court held that Tongish had breached the contract with no basis therefor.Damages were allowed in the amount of $ 455.51，which was the computed loss of handling charges.Coop appealed from said damage award.The Court of Appeals reversed the district court and remanded the case to the district court to determine and award damages pursuant to K.S.A.84－2－713(the difference between the market price and the contract price)．

* 473 ［1］［2］［3］［4］The analyses and rationale of the Court of Appeals utilized in resolving the issue are sound and we adopt the following portion thereof:

The trial court decided the damages to Coop should be the loss of expected profits.Coop argues that K.S.A.84－2－713 entitles it to collect as damages the difference between the market price and the contract price.Tongish argues that the trial court was correct and cites K.S.A.84－1－106 as support for the contention that a party should be placed in as good a position as it would be in had the other party performed.Therefore，the only disagreement is how the damages should be calculated.

The measure of damages in this action involves two sections of the Uniform Commercial Code:K.S.A.84－1－106 and K.S.A.84－2－713.The issue to be determined is which statute governs the measure of damages.Stated in another way，if the statutes are in conflict，which statute should prevail? The answer involves an ongoing academic discussion of two contending positions.The issues in this case disclose the problem.

If Tongish had not breached the contract，he may have received under the contract terms with Coop about $ 5 153.13 less than he received from Danny Thomas.Coop in turn had an oral contract with Bambino to sell whatever seeds it received from Tongish to Bambino for the same price Coop paid for them.Therefore，if the contract had been performed，Coop would not have actually received the extra $ 5 153.13.

We first turn our attention to the conflicting statutes and the applicable rules of statutory construction.K.S.A.84－1－106(1)states:

“The remedies provided by this act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this act or by other rule of law.”

If a seller breaches a contract and the buyer does not“cover， ”the buyer is free to pursue other available remedies.K.S.A.84－2－711 and 84－2－712.One remedy，which is a complete alternative to “cover”(K.S.A.84－2－713，Official comment，5)，is K.S.A.84－2－713(1)，which provides:

“Subject to the provisions of this article with respect to proof of market price(section 84－2－723)，the measure of damages for nondelivery or repudiation * 731 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 84－2－715)，but less expenses saved in consequence of the seller's breach.”

Neither party argues that the Uniform Commercial Code is inapplicable.Both agree that the issue to be determined is which provision of the U.C.C.should be applied.As stated by the appellee :‘This is really the essence of this appeal，i.e.，whether this general rule of damages ［K.S.A.84－1－106］controls the measure of damages set forth in K.S.A.84－2－713.’However，Tongish then offers no support that K.S.A.84－1－106 controls over K.S.A.84－2－713.The authority he does cite(M ＆ W Development，Inc.v.El Paso Water Co.， 6 Kan.App.2d 735， 634 P.2d 166 ［1981］)is not a U.C.C.case and K.S.A.84－2－713 was not applicable.

The statutes do contain conflicting provisions.On the one hand，K.S.A.84－1－106 offers a general guide of how remedies of the U.C.C.should be applied，whereas K.S.A.84－2－713 specifically describes a damage remedy that gives the buyer certain damages when the seller breaches a contract for the sale of goods.

The cardinal rule of statutory construction，to which all others are subordinate，is that the purpose and intent of the legislature govern.State ex rel.Stephan v.Kansas Racing Comm'n，246 Kan.708，719，792 P.2d 971(1990);Cedar Creek Properties，Inc.v.Board of Johnson County Comm'rs，246 Kan.412， 417，789 P.2d 1170(1990);and Stauffer Communications，Inc.v.Mitchell，246 Kan.492，Syl.1，789 P.2d 1153(1990)．When there is a * 474 conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it，the specific statute controls unless it appears that the legislature intended to make the general act controlling.State v.Wilcox， 245 Kan.76，Syl.1，775 P.2d 177(1989)．The Kansas Supreme Court stated in Kansas Racing Management，Inc.v.Kansas Racing Comm'n， 244 Kan.343， 353， 770 P.2d 423(1989):“General and special statutes should be read together and harmonized whenever possible，but to the extent a conflict between them exists，the special statute will prevail unless it appears the legislature intended to make the general statute controlling.”

K.S.A.84－2－713 allows the buyer to collect the difference in market price and contract price for damages in a breached contract.For that reason，it seems impossible to reconcile the decision of the district court that limits damages to lost profits with this statute.

Therefore，because it appears impractical to make K.S.A.84－1－106 and K.S.A.84－2－713 harmonize in this factual situation，K.S.A.84－2－713 should prevail as the more specific statute according to statutory rules of construction.

As stated，however，Coop protected itself against market price fluctuations through its contract with Bambino.Other than the minimal handling * 732 charge，Coop suffered no lost profits from the breach.Should the protection require an exception to the general rule under K.S.A.84－2－713?

In Panhandle Agri-Service，Inc.v.Becker，231 Kan.291，292，644 P.2d 413(1982)，a farmer agreed to sell 10 000 tons of alfalfa to the buyer for $ 45 per ton.At the time the seller breached the contract，the market price was $ 62 per ton.231 Kan.at 293 ［644 P.2d 413］．The court found，pursuant to K.S.A.84－2－713，that the damages amounted to $ 17 per ton or the difference between the market price and the contract price.The court stated :‘We find nothing which would justify the trial court in arriving at damages using loss of business profits which are consequential damages.’231 Kan.at 298 ［644 P.2d 413］．

In Baker v.Ratzlaff，1 Kan.App.2d 285，564 P.2d 153(1977)，the seller contracted to sell all the popcorn planted on 380 acres for $ 4.75 per hundredweight.The seller breached，and the trial court found that the market price for popcorn was $ 8 per hundredweight when the buyer learned of the breach.The court held that the proper measure of damages would be the difference between the market price and the contract price as provided in K.S.A.84－2－713.1 Kan.App.2d at 290 ［564 P.2d 153］．

Neither Panhandle nor Baker involved a conflict between the two UCC provisions.The difference between the market price and the contract price placed the nonbreaching party in as good a position as that party would have been if the contract had been performed.The decisions can be distinguished from this case，however，in that Coop protected itself against market price fluctuations with the Bambino contract.

There is authority for appellee's position that K.S.A.84－2－713 should not be applied in certain circumstances.In Allied Canners ＆ Packers，Inc.v.Victor Packing Co.， 162 Cal.App.3d 905， 209 Cal.Rptr.60(1984)，Allied contracted to purchase 375 000 pounds of raisins from Victor for 29.75 cents per pound with a 4% discount.Allied then contracted to sell the raisins for 29.75 cents per pound expecting a profit of $ 4 462.50 from the 4% discount it received from Victor.162 Cal.App.3d at 907－08 ［209 Cal.Rptr.60］．

Heavy rains damaged the raisin crop and Victor breached its contract，being unable to fulfill the requirement.The market price of raisins had risen to about 80 cents per pound.Allied's buyers agreed to rescind their contracts so Allied was not bound to supply them with raisins at a severe loss.Therefore，the actual loss to Allied was the $ 4 462.50 profit it expected，while the difference between the market price and the contract price was about $ 150 000.162 Cal.App.3d at 908－09 ［209 Cal.Rptr.60］．

* 475 The California appellate court，in writing an exception，stated:“It has been recognized that the use of the market-price contract-price formula under section 2－713 does not，absent pure accident，result in a damage award reflecting the buyer's actual loss.［Citations omitted.］”162 Cal.App.3d at 912［209 Cal.Rptr.60］．The court indicated that section 2－713 may be more of a statutory liquidated damages clause and，therefore，conflicts with the goal of section 1－106.The court discussed that in situations where the buyer has made a resale contract for the goods， which the seller knows about，it may be appropriate to limit 2－713 damages to actual loss.However，the court cited * 733 a concern that a seller not be rewarded for a bad faith breach of contract.162 Cal.App.3d at 912－14 ［209 Cal.Rptr.60］．

In Allied，the court determined that if the seller knew the buyer had a resale contract for the goods，and the seller did not breach the contract in bad faith，the buyer was limited to actual loss of damages under section 1－106.162 Cal.App.3d at 915 ［209 Cal.Rptr.60］．

The similarities between the present case and Allied are that the buyer made a resale contract which the seller knew about.(Tongish knew the seeds eventually went to Bambino，although he may not have known the details of the deal.)However，in examining the breach itself，Victor could not deliver the raisins because its crop had been destroyed.Tongish testified that he breached the contract because he was dissatisfied with dockage tests of Coop and/or Bambino.Victor had no raisins to sell to any buyer，while Tongish took advantage of the doubling price of sunflower seeds and sold to Danny Thomas.Although the trial court had no need to find whether Tongish breached the contract in bad faith， it did find there was no valid reason for the breach.Therefore，the nature of Tongish's breach was much different than Victor's in Allied.

Section 2－713 and the theories behind it have a lengthy and somewhat controversial history.In 1963，it was suggested that 2－713 was a statutory liquidated damages clause and not really an effort to try and accurately predict what actual damages would be.Peters，Remedies for Breach of Contracts Relating to the Sale of Goods Under the Uniform Commercial Code:A Roadmap for Article Two， 73 Yale L.J.199， 259(1963)．

In 1978，Robert Childres called for the repeal of section 2－713.Childres， Buyer's Remedies:The Danger ofSection 2－713， 72 Nw.U.L.Rev.837(1978)．Childres reflected that because the market price/contract price remedy‘has been the cornerstone of Anglo-American damages’that it has been so hard to see that this remedy‘makes no sense whatever when applied to real life situations.’72 Nw.U.L.Rev.at 841－42.

In 1979，David Simon and Gerald A.Novack wrote a fairly objective analysis of the two arguments about section 2－713 and stated:

“For over sixty years our courts have divided on the question of which measure of damages is appropriate for the supplier's breach of his delivery obligations.The majority view，reinforced by applicable codes，would award market damages even though in excess of plaintiff's loss.A persistent minority would reduce market damages to the plaintiff's loss，without regard to whether this creates a windfall for the defendant.Strangely enough，each view has generally tended to disregard the arguments， and even the existence，of the opposing view.”Simon and Novack，Limiting the Buyer's Market Damages to Lost Profits:A Challenge to the Enforceability of Market Contracts， 92 Harv.L.Rev.1395， 1397(1979)．

Although the article discussed both sides of the issue，the authors came down on the side of market price/contract price as the preferred damages theory.The authors admit that market damages fly in the face“of the familiar * 734 maxim that the purpose of contract damages is to make the injured party whole，not penalize the breaching party.”92 Harv.L.Rev.at 1437.However，they argue that the market damages rule discourages the breach of contracts * 476 and encourages a more efficient market.92 Harv.L.Rev.at 1437.

The Allied decision in 1984，which relied on the articles cited above for its analysis to reject market price/contract price damages，has been sharply criticized.In Schneider，UCC Section 2－713:A Defense of Buyers' Expectancy Damages，22 Cal.W.L.Rev.233，266(1986)，the author stated that Allied ‘adopted the most restrictive ［position］on buyer's damages.This Article is intended to reverse that trend.’Schneider argued that by following section 1－106，‘the court ignored the clear language of section 2－713's compensation scheme to award expectation damages in accordance with the parties' allocation of risk as measured by the difference between contract price and market price on the date set for performance.’22 Cal.W.L.Rev.at 264.

Recently in Scott，The Case for Market Damages:Revisiting the Lost Profits Puzzle， 57 U.Chi.L.Rev.1155， 1200(1990)，the Allied result was called “unfortunate.”Scott argues that section 1－106 is “entirely consistent”with the market damages remedy of 2－713.57 U.Chi.L.Rev.at 1201.According to Scott，it is possible to harmonize sections 1－106 and 2－713.Scott states ，“Market damages measure the expectancy ex ante，and thus reflect the value of the option;lost profits，on the other hand，measure losses ex post，and thus only reflect the value of the completed exchange.”57 U.Chi.L.Rev.at 1174.The author argues that if the nonbreaching party has laid off part of the market risk(like Coop did)the lost profits rule creates instability because the other party is now encouraged to breach the contract if the market fluctuates to its advantage.57 U.Chi.L.Rev.at 1178.

We are not persuaded that the lost profits view under Allied should be embraced.It is a minority rule that has received only nominal support.We believe the majority rule or the market damages remedy as contained in K.S.A.84－2－713 is more reasoned and should be followed as the preferred measure of damages.While application of the rule may not reflect the actual loss to a buyer，it encourages a more efficient market and discourages the breach of contracts.”Tongish v.Thomas，16 Kan.App.2d at 811－17 ［829 P.2d 916］．

At first blush，the result reached herein appears unfair.However，closer scrutiny dissipates this impression.By the terms of the contract Coop was obligated to buy Tongish's large sunflower seeds at $ 13 per hundredweight whether or not it had a market for them.Had the price of sunflower seeds plummeted by delivery time，Coop's obligation to purchase at the agreed price was fixed.If loss of actual profit pursuant to K.S.A.84－1－106(1)would be the measure of damages to be applied herein，it would enable Tongish to consider the Coop contract price of $ 13 per * 735 hundredweight plus 55 cents per hundredweight handling fee as the “floor”price for his seeds，take advantage of rapidly escalating prices，ignore his contractual obligation， and profitably sell to the highest bidder.Damages computed under K.S.A.84－2－713 encourage the honoring of contracts and market stability.

［5］As an additional argument，Tongish contends that the application of K.S.A.84－2－713 would result in the unjust enrichment of Coop.This argument was not presented to the trial court.

Even if properly before us，the argument lacks merit.We discussed the doctrine of unjust enrichment in J.W.Thompson Co.v.Welles Products Corp.， 243 Kan.503， 758 P.2d 738(1988)，stating:

“The basic elements on a claim based on a theory of unjust enrichment are threefold:(1)a benefit conferred upon the defendant by the plaintiff;(2)an appreciation or knowledge of the benefit by the defendant;and(3)the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.”243 Kan.at 512，758 P.2d 738.

Before us is which statutory measure of damages applies.This is not a matter of one party conferring a benefit upon another.

* 477 The judgment of the Court of Appeals reversing the district court and remanding the case for the determination and award of damages pursuant to the provisions of K.S.A.84－2－713 is affirmed.The judgment of the district court is reversed.

思考题

1.简述本案基本事实。

2.UCC2－713在本案中是否适用，为什么?

3.适用UCC2－713的结果是什么?