K.S.A. § 84-2-712 (2026)
"Cover"; buyer's procurement of substitute goods
84-2-712. "Cover"; buyer's procurement of substitute goods. (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.
(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 84-2-715), but less expenses saved in consequence of the seller's breach.
(3) Failure of the buyer to effect cover within this section does not bar him from any other remedy.
History: L. 1965, ch. 564, § 108; January 1, 1966.
KANSAS COMMENT, 1996
1. The "cover" measure of damages under this section is the equivalent of the seller's right to resell under 84-2-706 and is the preferred remedy for buyers. It bases damages on the price the buyer paid for substitute goods rather than relying on market price. The cover remedy seeks to put the buyer in the same position it would have been in had the contract been performed: the buyer has comparable goods and is able to recover the excess cost from the seller. Under subsection (2), the buyer that properly covers may recover as damages from the seller the cover price less the contract price, plus any incidental or consequential damages but less any expenses saved as a result of the breach. See Sunflower Elec. Coop. v. Tomlinson Oil Co., 7 K.A.2d 131, 638 P.2d 963 (1981), rev. denied, 231 K. 802 (1982).
2. Subsection (1) sets out the prerequisites for effective cover. To rely on the measure of damages in this section, a buyer must (1) in good faith and (2) without unreasonable delay make (3) a reasonable purchase of (4) goods in substitution for those due under the contract. Good faith is defined in 84-1-201(19) and 84-2-103(1)(b). See 1996 Kansas Comment 3 to 84-2-103. Official Comment 2 states that the requirement that cover be made without unreasonable delay is not intended to limit the buyer's ability to consider available alternatives; "reasonable time" is defined in 84-1-204(2). What the objective requirement that the purchase be "reasonable" adds to the good faith requirement, at least for merchants, is unclear. Finally, goods in substitution for those under the contract need not be identical but may be "commercially usable as reasonable substitutes." See Official Comment 2 to this section.
3. Resort to this section is not mandatory. Subsection (3) provides that a buyer that fails to effect cover or that covers improperly may nevertheless obtain damages for non-delivery under 84-2-713. The one exception is that a buyer that fails to cover may not recover consequential damages that cover could have prevented. See 84-2-715(2)(a) and 1996 Kansas Comment 3 to that section. This is a variation on the duty to mitigate damages. Whether a buyer that covers may nonetheless rely on the market damage measure of 84-2-713 is unclear. The language of 84-2-711, which lists cover damages and market damages as alternative remedies, gives no indication that cover precludes a buyer from recovering market damages. Official Comment 5 to this section does, however; it states that the market damage remedy "is completely alternative" to the cover remedy "and applies only when and to the extent that the buyer has not covered." That conclusion is consistent with the general policy of Article 2 that damages should protect the aggrieved party's expectation; cover damages do precisely that, while market damages may overcompensate a buyer. For sellers, the Kansas Supreme Court in Wendling v. Puls, 227 K. 780, 610 P.2d 580 (1980), indicated that resale does not preclude use of market damages by a seller, and so symmetry would support giving buyers an analogous choice. Overall, precluding buyers that have covered from recovering market damages makes the most sense as a policy matter; whether Article 2 adopts that rule remains to be decided in Kansas.
Law Review and Bar Journal References:
"Remedies for Breach of Sales Contract Under the Code," Keith Hey, 7 W.L.J. 35, 40, 41 (1967).
The uniform commercial code, the statute of frauds, and the farmer, 25 K.L.R. 318, 319 (1977).
CASE ANNOTATIONS
1. Breach of contract for sale of hay; where no attempt made to cover, measure of damages is difference between market price at time buyer learned of breach and contract price. Panhandle Agri-Service, Inc. v. Becker, 231 Kan. 291, 297, 298, 644 P.2d 413 (1982).
2. Manufacturer of trash can liners, by accepting off-grade resins without notifying producer of breach of oral agreement, barred from claims. Rajala v. Allied Corp., 919 F.2d 610 (1990).
3. When subcontractor failed to supply affidavits, considered repudiation with UCC remedies available. In Re John Gruss Co., Inc., 22 B.R. 236, 237, 242 (1982).
4. Cited in holding specific provisions of K.S.A. 84-2-713 prevail over general provisions in K.S.A. 84-1-106 when seller breaches contract for sale of goods. Tongish v. Thomas, 16 Kan. App. 2d 809, 812, 829 P.2d 916 (1992); Aff'd. 251 Kan. 728, 730, 840 P.2d 471 (1992).
5. Whether buyer following breach made purchase in good faith and without delay for cover purposes examined. Kansas Mun. Gas Agency v. Vesta Energy Co., Inc., 843 F. Supp. 1401, 1408 (1994).
6. Seller's failure to deliver entitled buyer to cover damages for replacement goods from another vendor. GFSI, Inc. v. J-Loong Trading, Ltd., 505 F. Supp. 2d 935, 946 (2007).