O.C.G.A.

O.C.G.A. § 11-2-708 (2019)

Seller’s damages for nonacceptance or repudiation

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(1) Subject to subsection (2) of this Code section and to the provisions of this article with respect to proof of market price (Code Section 11-2-723), the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this article (Code Section 11-2-710), but less expenses saved in consequence of the buyer’s breach. (2) If the measure of damages provided in subsection (1) of this Code section is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this article (Code Section 11-2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.

History

Code 1933, § 109A-2-708, enacted by Ga. L. 1962, p. 156, § 1.

Annotations

JUDICIAL DECISIONS Purpose of section. - O.C.G.A. § 112-708 was intended to provide an adequate remedy for the “lost volume dealer” or “lost volume seller,” which refers to a seller who, due to the nature of its business, is damaged by a buyer’s breach to the extent that it loses the entire profit from the sale. Unique Designs, Inc. v. Pittard Mach. Co., 200 Ga. App. 647, 409 S.E.2d 241, 1991 Ga. App. LEXIS 1130 (1991), cert. denied, No. S91C1623, 1991 Ga. LEXIS 499 (Ga. Sept. 19, 1991). Arithmetical accuracy in determining damages not required. - The evidence clearly established a breach of an agreement to buy/sell electronic circuit boards and a resulting right to damages even though the amount of damages was arrived at by use of a complex and confus-

ing mathematical methodology which did not produce exact arithmetical accuracy. Franklin v. Demico, Inc., 179 Ga. App. 775, 347 S.E.2d 718, 1986 Ga. App. LEXIS 2010 (1986). Proof required to establish “lost volume dealer.” - In order for seller to establish that seller is a “lost volume dealer,” seller must prove that even though the repudiated contract goods were later resold by the seller, the sale to the third party would have been made regardless of the buyer’s breach so that the seller would have realized two profits from two sales. Unique Designs, Inc. v. Pittard Mach. Co., 200 Ga. App. 647, 409 S.E.2d 241, 1991 Ga. App. LEXIS 1130 (1991), cert. denied, No. S91C1623, 1991 Ga. LEXIS 499 (Ga. Sept. 19, 1991).

RESEARCH REFERENCES Am. Jur. 2d. 22 Am. Jur. 2d, Damages, §§ 509, 642647. 67A Am. Jur. 2d, Sales, §§ 11091134. Am. Jur. Pleading and Practice Forms. 6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:690. U.L.A. Uniform Commercial Code (U.L.A.) § 2708. ALR. Time as of which damages are to be determined where broker, before expiration of credit period, repudiates contract to purchase stock for customer on partial payment plan, 31 A.L.R. 1179. Rights and remedies upon cancelation of sales agency, 32 A.L.R. 209; 52 A.L.R. 546; 89 A.L.R. 252. Valuation clause in carrier’s contract as limit, or as ratio, of recovery in case of partial loss, 41 A.L.R. 450.

Measure of damages for buyer’s breach of contract to purchase article of dealer, 44 A.L.R. 349; 24 A.L.R.2d 1008. Measure of damages for buyer’s repudiation of or failure to accept goods under executory contract, 44 A.L.R. 215; 108 A.L.R. 1482. Rate of exchange to be taken into account in assessing damages for breach of contract or nonpayment of money obligation payable in foreign currency, 105 A.L.R. 640. Measure of damages for buyer’s breach of contract to purchase article from dealer or manufacturer’s agent, 24 A.L.R.2d 1008. Uniform Commercial Code: measure of recovery where buyer repudiates contract for goods to be manufactured to special order, before completion of manufacture, 42 A.L.R.3d 182.

Notes of Decisions

Cited in 6 cases (1 in the last 5 years), 1986–2025 · leading case: Unique Designs, Inc. v. Pittard Mach. Co., 409 S.E.2d 241 (Ga. Ct. App. 1991).

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Unique Designs, Inc. v. Pittard Mach. Co., 409 S.E.2d 241 (Ga. Ct. App. 1991). · cites it 14× “The trial court granted Pittard’s motion for summary judgment on the issue of liability, ruling that the oral contract between the parties was valid pursuant to OCGA § 11-2-201 (3) (b), and Pittard was a “high volume dealer,” entitled to recover its lost profits pursuant to OCGA…”

Franklin v. Demico, Inc., 347 S.E.2d 718 (Ga. Ct. App. 1986). · cites it 16× “Thus, OCGA § 11-2-708 would control. Because the items involved were unique so that no market existed, OCGA § 11-2-708 (2) rather than (1) would be applicable.”

Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280 (11th Cir. 2004). “Pursuant to O.C.G.A. § 11-2-708(2), an aggrieved seller may recover “profit (including reasonable overhead) which the seller would have made from full performance by the buyer, .”

Lipsey Motors v. Karp Motors, Inc., 389 S.E.2d 537 (Ga. Ct. App. 1989). · cites it 2× “Appellant asserts that the measure of damages contained in OCGA §11-2-708 should be applied. We disagree.”

Ultra Grp. of Companies, Inc. v. S & a 1488 Mgmt., Inc. (Ga. Ct. App. 2020). · cites it 8× “In order for Ultra to show that it is a lost volume seller, it “must prove that even though it later resold the repudiated contract goods, the sale to the third party would have been made regardless of the buyer’s breach so that the seller would have realized two profits from…”

Hydro Sys., Inc v. Factory Automation Sys., Inc (N.D. Ga. 2025). · cites it 2× “§ 11-2-709(1), (2) (citing O.C.G.A. § 11-2-708). Here, whether Hydro Systems accepted the robots subject to seasonable cure and/or properly revoked acceptance is an issue of fact as set forth above.”

— 11-2-708(2) — 1 case

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