(a) Where the seller is required or authorized to send the goods to the buyer and the contract does not require him to deliver them at a particular destination, then unless otherwise agreed he must:
(i) Put the goods in the possession of such a carrier and make such a contract for their transportation as may be reasonable having regard to the nature of the goods and other circumstances of the case; and
(ii) Obtain and promptly deliver or tender in due form any document necessary to enable the buyer to obtain possession of the goods or otherwise required by the agreement or by usage of trade; and
(iii) Promptly notify the buyer of the shipment.
(b) Failure to notify the buyer under subdivision (a)(iii) or to make a proper contract under subdivision (a)(i) is a ground for rejection only if material delay or loss ensues.
(a) Where the seller has identified goods to the contract by or before shipment:
(i) His procurement of a negotiable bill of lading to his own order or otherwise reserves in him a security interest in the goods. His procurement of the bill to the order of a financing agency or of the buyer indicates in addition only the seller's expectation of transferring that interest to the person named;
(ii) A nonnegotiable bill of lading to himself or his nominee reserves possession of the goods as security but except in a case of conditional delivery (section 34.1-2-507(b)) a nonnegotiable bill of lading naming the buyer as consignee reserves no security interest even though the seller retains possession or control of the bill of lading.
(b) When shipment by the seller with reservation of a security interest is in violation of the contract for sale it constitutes an improper contract for transportation within the preceding section but impairs neither the rights given to the buyer by shipment and identification of the goods to the contract nor the seller's powers as a holder of a negotiable document of title.
(a) A financing agency by paying or purchasing for value a draft which relates to a shipment of goods acquires to the extent of the payment or purchase and in addition to its own rights under the draft and any document of title securing it any rights of the shipper in the goods including the right to stop delivery and the shipper's right to have the draft honored by the buyer.
(b) The right to reimbursement of a financing agency which has in good faith honored or purchased the draft under commitment to or authority from the buyer is not impaired by subsequent discovery of defects with reference to any relevant document which was apparently regular.
34.1-2-507. Effect of seller's tender; delivery on condition.
(a) Tender of delivery is a condition to the buyer's duty to accept the goods, unless otherwise agreed, to his duty to pay for them. Tender entitles the seller to acceptance of the goods and to payment according to the contract.
(b) Where payment is due and demanded on the delivery to the buyer of goods or documents of title, his right as against the seller to retain or dispose of them is conditional upon his making the payment due.
34.1-2-508. Cure by seller of improper tender or delivery; replacement.
(a) Where any tender or delivery by the seller is rejected because nonconforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.
(b) Where the buyer rejects a nonconforming 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.
34.1-2-509. Risk of loss in the absence of breach.
(a) Where the contract requires or authorizes the seller to ship the goods by carrier:
(i) If it does not require him to deliver them at a particular destination, the risk of loss passes to the buyer when the goods are duly delivered to the carrier even though the shipment is under reservation (section 34.1-2-505); but
(ii) If it does require him to deliver them at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the buyer when the goods are there duly so tendered as to enable the buyer to take delivery.
(b) Where the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer:
(i) On his receipt of possession or control of a negotiable document of title covering the goods; or
(ii) On acknowledgment by the bailee of the buyer's right to possession of the goods; or
(iii) After his receipt of possession or control of a nonnegotiable document of title or other direction to deliver in a record, as provided in section 34.1-2-503(d)(ii).
(c) In any case not within subsection (a) or (b), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk passes to the buyer on tender of delivery.
(d) The provisions of this section are subject to contrary agreement of the parties and to the provisions of this article on sale on approval (section 34.1-2-327) and on effect of breach on risk of loss (section 34.1-2-510).
(a) Where a tender or delivery of goods so fails to conform to the contract as to give a right of rejection the risk of their loss remains on the seller until cure or acceptance.
(b) Where the buyer rightfully revokes acceptance he may to the extent of any deficiency in his effective insurance coverage treat the risk of loss as having rested on the seller from the beginning.
(c) Where the buyer as to conforming goods already identified to the contract for sale repudiates or is otherwise in breach before risk of their loss has passed to him, the seller may to the extent of any deficiency in his effective insurance coverage treat the risk of loss as resting on the buyer for a commercially reasonable time.
34.1-2-511. Tender of payment by buyer; payment by check.
(a) Unless otherwise agreed tender of payment is a condition to the seller's duty to tender and complete any delivery.
(b) Tender of payment is sufficient when made by any means or in any manner current in the ordinary course of business unless the seller demands payment in legal tender and gives any extension of time reasonably necessary to procure it.
(c) Subject to the provisions of this act on the effect of an instrument on an obligation, payment by check is conditional and is defeated as between the parties by dishonor of the check on due presentment.
(a) Where the contract requires payment before inspection nonconformity of the goods does not excuse the buyer from so making payment unless:
(i) The nonconformity appears without inspection; or
(ii) Despite tender of the required documents the circumstances would justify injunction against honor under this act (section 34.1-5-109(b)).
(b) Payment pursuant to subsection (a) does not constitute an acceptance of goods or impair the buyer's right to inspect or any of his remedies.
(a) Unless otherwise agreed and subject to subsection (c), where goods are tendered or delivered or identified to the contract for sale, the buyer has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the seller is required or authorized to send the goods to the buyer, the inspection may be after their arrival.
(b) Expenses of inspection must be borne by the buyer but may be recovered from the seller if the goods do not conform and are rejected.
(c) Unless otherwise agreed and subject to the provisions of this article on C.I.F. contracts (section 34.1-2-321(a)(iii)), the buyer is not entitled to inspect the goods before payment of the price when the contract provides:
(i) For delivery "C.O.D." or on other like terms; or
(ii) For payment against documents of title, except where such payment is due only after the goods are to become available for inspection.
(d) A place or method of inspection filed by the parties is presumed to be exclusive but unless otherwise expressly agreed it does not postpone identification or shift the place for delivery or for passing the risk of loss. If compliance becomes impossible, inspection shall be as provided in this section unless the place or method fixed was clearly intended as an indispensable condition failure of which avoids the contract.
34.1-2-514. When documents deliverable on acceptance; when on payment.
Unless otherwise agreed documents against which a draft is drawn are to be delivered to the drawee on acceptance of the draft if it is payable more than three (3) days after presentment; otherwise, only on payment.
34.1-2-515. Preserving evidence of goods in dispute.
(a) In furtherance of the adjustment of any claim or dispute:
(i) Either party on reasonable notification to the other and for the purpose of ascertaining the facts and preserving evidence has the right to inspect, test and sample the goods including such of them as may be in the possession or control of the other; and
(ii) The parties may agree to a third party inspection or survey to determine the conformity or condition of the goods and may agree that the findings shall be binding upon them in any subsequent litigation or adjustment.
(a) Subject to the provisions of this article on breach in installment contracts (section 34.1-2-612) and unless otherwise agreed under the sections on contractual limitations of remedy (sections 34.1-2-718 and 34.1-2-719) if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may:
(i) Reject the whole; or
(ii) Accept the whole; or
(iii) Accept any commercial unit or units and reject the rest.
34.1-2-602. Manner and effect of rightful rejection.
(a) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.
(b) Subject to the provisions of the two (2) following sections on rejected goods (sections 34.1-2-603 and 34.1-2-604):
(i) After rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and
(ii) If the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this article (section 34.1-2-711(c)), he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but
(iii) The buyer has no further obligation with regard to goods rightfully rejected.
(c) The seller's rights with respect to goods wrongfully rejected are governed by the provisions of this article on seller's remedies in general (section 34.1-2-703).
34.1-2-603. Merchant buyer's duties as to rightfully rejected goods.
(a) Subject to any security interest in the buyer (section 34.1-2-711(c)), when the seller has no agent or place of business at 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. Instructions are not reasonable if on demand indemnity for expenses is not forthcoming.
(b) When the buyer sells goods under subsection (a), he is entitled to reimbursement from the seller or out of the proceeds for reasonable expenses of caring for and selling them, and if the expenses include no selling commission then to such commission as is usual in the trade or if there is none to a reasonable sum not exceeding ten percent (10%) on the gross proceeds.
(c) In complying with this section the buyer is held only to good faith and good faith conduct hereunder is neither acceptance nor conversion nor the basis of an action for damages.
34.1-2-604. Buyer's options as to salvage of rightfully rejected goods.
Subject to the provisions of the immediately preceding section on perishables if the seller gives no instructions within a reasonable time after notification of rejection the buyer may store the rejected goods for the seller's account or reship them to him or resell them for the seller's account with reimbursement as provided in the preceding section. Such action is not acceptance or conversion.
34.1-2-605. Waiver of buyer's objections by failure to particularize.
(a) The buyer's failure to state in connection with rejection a particular defect which is ascertainable by reasonable inspection precludes him from relying on the unstated defect to justify rejection or to establish breach:
(i) Where the seller could have cured it if stated seasonably; or
(ii) Between merchants when the seller has after rejection made a request in writing for a full and final written statement of all defects on which the buyer proposes to rely.
(b) Payment against documents made without reservation of rights precludes recovery of the payment for defects apparent in the documents.
(a) Acceptance of goods occurs when the buyer:
(i) After a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
(ii) Fails to make an effective rejection (section 34.1-2-602(a)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
(iii) Does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
(b) Acceptance of a part of any commercial unit is acceptance of that entire unit.
34.1-2-607. Effect of acceptance; notice of breach; burden
of establishing breach after acceptance; notice of claim or litigation to person answerable over.
(a) The buyer must pay at the contract rate for any goods accepted.
(b) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a nonconformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by this article for nonconformity.
(c) Where a tender has been accepted:
(i) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and
(ii) If the claim is one for infringement or the like (section 34.1-2-312(c)) and the buyer is sued as a result of such a breach he must so notify the seller within a reasonable time after he receives notice of the litigation or be barred from any remedy over for liability established by the litigation.
(d) The burden is on the buyer to establish any breach with respect to the goods accepted.
(e) Where the buyer is sued for breach of a warranty or other obligation for which his seller is answerable over:
(i) He may give his seller written notice of the litigation. If the notice states that the seller may come in and defend and that if the seller does not do so he will be bound in any action against him by his buyer by any determination of fact common to the two (2) litigations, then unless the seller after seasonable receipt of the notice does come in and defend he is so bound;
(ii) If the claim is one for infringement or the like (section 34.1-2-312(c)) the original seller may demand in writing that his buyer turn over to him control of the litigation including settlement or else be barred from any remedy over and if he also agrees to bear all expense and to satisfy any adverse judgment, then unless the buyer after seasonable receipt of the demand does turn over control the buyer is so barred.
(f) The provisions of subsections (c), (d) and (e) apply to any obligation of a buyer to hold the seller harmless against infringement or the like (section 34.1-2-312(c)).
34.1-2-608. Revocation of acceptance in whole or in part.
(a) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:
(i) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(ii) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.
(b) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(c) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.
34.1-2-609. Right to adequate assurance of performance.
(a) A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.
(b) Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards.
(c) Acceptance of any improper delivery or payment does not prejudice the aggrieved party's right to demand adequate assurance of further performance.
(d) After receipt of a justified demand failure to provide within a reasonable time not exceeding thirty (30) days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.
(a) When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may:
(i) For a commercially reasonable time await performance by the repudiating party; or
(ii) Resort to any remedy for breach (section 34.1-2-703 or section 34.1-2-711), even though he has notified the repudiating party that he would await the latter's performance and has urged retraction; and
(iii) In either case suspend his own performance or proceed in accordance with the provisions of this article on the seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (section 34.1-2-704).
34.1-2-611. Retraction of anticipatory repudiation.
(a) Until the repudiating party's next performance is due he can retract his repudiation unless the aggrieved party has since the repudiation cancelled or materially changed his position or otherwise indicated that he considers the repudiation final.
(b) Retraction may be by any method which clearly indicates to the aggrieved party that the repudiating party intends to perform, but must include any assurance justifiably demanded under the provisions of this article (section 34.1-2-609).
(c) Retraction reinstates the repudiating party's rights under the contract with due excuse and allowance to the aggrieved party for any delay occasioned by the repudiation.
(a) An "installment contract" is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause "each delivery is a separate contract" or its equivalent.
(b) The buyer may reject any installment which is nonconforming if the nonconformity substantially impairs the value of that installment and cannot be cured or if the nonconformity is a defect in the required documents; but if the nonconformity does not fall within subsection (c) and the seller gives adequate assurance of its cure the buyer must accept that installment.
(c) Whenever nonconformity or default with respect to one (1) or more installments substantially impairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a nonconforming installment without seasonably notifying of cancellation or if he brings an action with respect only to past installments or demands performance as to future installments.
(a) Where the contract requires for its performance goods identified when the contract is made, and the goods suffer casualty without fault of either party before the risk of loss passes to the buyer, or in a proper case under a "no arrival, no sale" term (section 34.1-2-324) then:
(i) If the loss is total the contract is voided; and
(ii) If the loss is partial or the goods have so deteriorated as no longer to conform to the contract the buyer may nevertheless demand inspection and at his option either treat the contract as avoided or accept the goods with due allowance from the contract price for the deterioration or the deficiency in quantity but without further right against the seller.
(a) Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted.
(b) If the agreed means or manner of payment fails because of domestic or foreign governmental regulation, the seller may withhold or stop delivery unless the buyer provides a means or manner of payment which is commercially a substantial equivalent. If delivery has already been taken, payment by the means or in the manner provided by the regulation discharges the buyer's obligation unless the regulation is discriminatory, oppressive or predatory.
34.1-2-615. Excuse by failure of presupposed conditions.
(a) Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance:
(i) Delay in delivery or nondelivery in whole or in part by a seller who complies with subdivisions (ii) and (iii) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid;
(ii) Where the causes mentioned in subdivision (i) affect only a part of the seller's capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable;
(iii) The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under subdivision (ii), of the estimated quota thus made available for the buyer.
(a) Where the buyer receives notification of a material or indefinite delay of an allocation justified under the preceding section he may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs breach of installment contracts (section 34.1-2-612), then also as to the whole:
(i) Terminate and thereby discharge any unexecuted portion of the contract; or
(ii) Modify the contract by agreeing to take his available quota in substitution.
(b) If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding thirty (30) days the contract lapses with respect to any deliveries affected.
(c) The provisions of this section may not be negated by agreement except insofar as the seller has assumed a greater obligation under the preceding section.
34.1-2-702. Seller's remedies on discovery of buyer's insolvency.
(a) Where the seller discovers the buyer to be insolvent he may refuse delivery except for cash including payment for all goods theretofore delivered under the contract, and stop delivery under this article (section 34.1-2-705).
(b) Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within ten (10) days after the receipt, but if misrepresentation of solvency has been made to the particular seller in writing within three (3) months before delivery the ten (10) day limitation does not apply. Except as provided in this subsection the seller may not base a right to reclaim goods on the buyer's fraudulent or innocent misrepresentation of solvency or of intent to pay.
(c) The seller's right to reclaim under subsection (b) is subject to the rights of a buyer in ordinary course or other good faith purchaser under this article (section 34.1-2-403). Successful reclamation of goods excludes all other remedies with respect to them.
(a) Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract (section 34.1-2-612), then also with respect to the whole undelivered balance, the aggrieved seller may:
(i) Withhold delivery of such goods;
(ii) Stop delivery by any bailee as hereafter provided (section 34.1-2-705);
(iii) Proceed under the next section respecting goods still unidentified to the contract;
(iv) Resell and recover damages as hereafter provided (section 34.1-2-706);
(v) Recover damages for nonacceptance (section 34.1-2-708) or in a proper case the price (section 34.1-2-709);
(vi) Cancel.
34.1-2-704. Seller's right to identify goods to the
contract notwithstanding breach or to salvage unfinished goods.
(a) An aggrieved seller under the preceding section may:
(i) Identify to the contract conforming goods not already identified if at the time he learned of the breach they are in his possession or control;
(ii) Treat as the subject of resale goods which have demonstrably been intended for the particular contract even though those goods are unfinished.
(b) Where the goods are unfinished an aggrieved seller may in the exercise of reasonable commercial judgment for the purpose of avoiding loss and of effective realization either complete the manufacture and wholly identify the goods to the contract or cease manufacture and resell for scrap or salvage value or proceed in any other reasonable manner.
34.1-2-705. Seller's stoppage of delivery in transit or otherwise.
(a) The seller may stop delivery of goods in the possession of a carrier or other bailee when he discovers the buyer to be insolvent (section 34.1-2-702) and may stop delivery of carload, truckload, planeload or larger shipments of express or freight when the buyer repudiates or fails to make a payment due before delivery or if for any other reason the seller has a right to withhold or reclaim the goods.
(b) As against such buyer the seller may stop delivery until:
(i) Receipt of the goods by the buyer; or
(ii) Acknowledgment to the buyer by any bailee of the goods except a carrier that the bailee holds the goods for the buyer; or
(iii) Such acknowledgment to the buyer by a carrier by reshipment or as a warehouse; or
(iv) Negotiation to the buyer of any negotiable document of title covering the goods.
(c) (i) To stop delivery the seller must so notify as to enable the bailee by reasonable diligence to prevent delivery of the goods;
(ii) After such notification the bailee must hold and deliver the goods according to the directions of the seller but the seller is liable to the bailee for any ensuing charges or damages;
(iii) If a negotiable document of title has been issued for goods the bailee is not obliged to obey a notification to stop until surrender of possession or control of the document;
(iv) A carrier who has issued a nonnegotiable bill of lading is not obliged to obey a notification to stop received from a person other than the consignor.
34.1-2-706. Seller's resale including contract for resale.
(a) Under the conditions stated in section 34.1-2-703 on seller's remedies, the seller may resell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this article (section 34.1-2-710), but less expenses saved in consequence of the buyer's breach.
(b) Except as otherwise provided in subsection (c) or unless otherwise agreed resale may be at public or private sale including sale by way of one (1) or more contracts to sell or of identification to an existing contract of the seller. Sale may be as a unit or in parcels and at any time and place and on any terms but every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable. The resale must be reasonably identified as referring to the broken contract, but it is not necessary that the goods be in existence or that any or all of them have been identified to the contract before the breach.
(c) Where the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell.
(d) Where the resale is at public sale:
(i) Only identified goods can be sold except where there is a recognized market for a public sale of futures in goods of the kind; and
(ii) It must be made at a usual place or market for public sale if one is reasonably available and except in the case of goods which are perishable or threaten to decline in value speedily the seller must give the buyer reasonable notice of the time and place of the resale; and
(iii) If the goods are not to be within the view of those attending the sale the notification of sale must state the place where the goods are located and provide for their reasonable inspection by prospective bidders; and
(iv) The seller may buy.
(e) A purchaser who buys in good faith at a resale takes the goods free of any rights of the original buyer even though the seller fails to comply with one (1) or more of the requirements of this section.
(f) The seller is not accountable to the buyer for any profit made on any resale. A person in the position of a seller (section 34.1-2-707) or a buyer who has rightfully rejected or justifiably revoked acceptance must account for any excess over the amount of his security interest, as hereinafter defined (section 34.1-2-711(c)).
(a) A "person in the position of a seller" includes as against a principal an agent who has paid or become responsible for the price of goods on behalf of his principal or anyone who otherwise holds a security interest or other right in goods similar to that of a seller.
(b) A person in the position of a seller may as provided in this article withhold or stop delivery (section 34.1-2-705) and resell (section 34.1-2-706) and recover incidental damages (section 34.1-2-710).
34.1-2-708. Seller's damages for nonacceptance or repudiation.
(a) Subject to subsection (b) and to the provisions of this article with respect to proof of market price (section 34.1-2-723), 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 (section 34.1-2-710), but less expenses saved in consequence of the buyer's breach.
(b) If the measure of damages provided in subsection (a) 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 (section 34.1-2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.
(a) When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section, the price:
(i) Of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and
(ii) Of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.
(b) Where the seller sues for the price he must hold for the buyer any goods which have been identified to the contract and are still in his control except that if resale becomes possible he may resell them at any time prior to the collection of the judgment. The net proceeds of any such resale must be credited to the buyer and payment of the judgment entitles him to any goods not resold.
(c) After the buyer has wrongfully rejected or revokes acceptance of the goods or has failed to make a payment due or has repudiated (section 34.1-2-610), a seller who is held not entitled to the price under this section shall nevertheless be awarded damages for nonacceptance under the preceding section.
Incidental damages to an aggrieved seller include any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer's breach, in connection with return or resale of the goods or otherwise resulting from the breach.
34.1-2-711. Buyer's remedies in general; buyer's security interest in rejected goods.
(a) 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 34.1-2-612), 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:
(i) "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
(ii) Recover damages for nondelivery as provided in this article (section 34.1-2-713).
(b) Where the seller fails to deliver or repudiates the buyer may also:
(i) If the goods have been identified recover them as provided in this article (section 34.1-2-502); or
(ii) In a proper case obtain specific performance or replevy the goods as provided in this article (section 34.1-2-716).
(c) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (section 34.1-2-706).
34.1-2-712. "Cover"; buyer's procurement of substitute goods.
(a) 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.
(b) 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 34.1-2-715), but less expenses saved in consequence of the seller's breach.
(c) Failure of the buyer to effect cover within this section does not bar him from any other remedy.