Prior Posts: Remedies: Consequential Damages
I have just found out that my favorite band is going to be playing one concert this year in San Fransisco. So I buy myself a ticket for the concert. Due to the fact that I live in Miami and I am now going to be attending the concert, I purchase a plane ticket, hotel and a rental car all because of my ability to purchase the concert ticket. I arrive at the stadium where the concert is being held only to find out that in a spat of artistic differences the band is splitting up and will no longer be performing that night. Can I sue and recover for the hotel, plane ticket and rental car? If it were not for the concert I would not have purchased any of these items.
(1) You get back the cost of the ticket as the value of the performance as promised equals the value of ticket and you got no performance.
(2) I don’t see how your costs of attending the concert ought to be in the contemplation of Ticketron, so no recovery for these consequential damages
Damages to non-parties to the Contract
If one kid claims that the actions of some other actor and/or ultimately the breach by Deep Discount Books in releasing their copies early caused her to feel some mental distress or anguish, could Deep Discount Books reasonably be held liable in the suit?
And can Scholastic be entered as either a defendant or plaintiff as well?
—-Contracts are about relations and normally (with an exception not relevant here) the only parties entitled to sue on a breach of contract action are the parties to the contract. You hypothesize damages done between strangers (as the kid and Deep Discount Books are not in contractual relation with each other. consequently, your question is about a tort action. That is not my area, but I don’t see any duty owed to the world not to sell one’s property because the buyer might use it so spoil someone’s else’s fun.
August 26th, 2011
Applies only to the sale of goods (but see Michael Jordan case). And only to the Seller.
(a) Your Honor, our sale of the goods that were the subject matter of the contract that Buyer breached was not a resale, but was a second sale, i.e., but for the Buyer’s breach we would have made two sales. To put us in the position we would have been had the buyer not breached, we need to be awarded the profit that we would have made on the Buyer’s contract. 2-708(2) allows you to award us these profits.
(b) Your Honor, the breaching Buyer argues that we should receive no damages because we failed to mitigate our damages by reselling the goods. Any sale, however, would not have been a resale, but a second sale. Hence, we are entitled to the profits we would have made on the sale to the breaching buyer.
How to determine if the sale was a resale or a second sale? The test that it is a second sale if the seller had an infinite or unlimited supply of good can’t be a factual test.
Consider this set of hypotheticals:
Tenant breaches and next day a prospective new tenant arrives and expresses interest in Tenant’s apartment, but landlord steers her to 2nd apartment which she rents. Assume Landlord said that Tenant’s apartment was “not currently available” (but fails to inform that it would be available in 2 days, after cleaning). Assume instead that Landlord says nothing overtly. Assume instead that landlord never shows the new tenant the apartment. Or, instead assume that new tenant rents the apartment but there are absolutely equal apartments in the building that are still unrented.