Opportunistic Resales and the Uniform Commercial Code

The Uniform Commercial Code seeks to compensate an aggrieved seller by taking into account actual or substituted transactions based on market considerations. More particularly, section 2-706 permits a seller to recover the value of a replacement transaction whereas section 2-708 attempts to protect the seller by allowing a market-based recovery. The question then arises: does the actual advantageous resale preclude reliance on the market-contract standard, or does the seller have the option to choose whichever measure turns out to be more favorable? It is unsettled whether a seller who resells advantageously can increase the damages award through recourse to market-based damages. This Article seeks to bring greater perspective to the interplay of opportunistic resales under the Uniform Commercial Code by examining the basic tenets of both the common law of contracts and the Code. This Article proposes a more careful and extensive look at the application of sections 2-706 and 2-708 in the specific context of advantageous resales, and attempts to guide those endeavoring to apply section 2-708(1) when a seller has made a resale, regardless of whether or not complying with section 2-706.

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