"Cover"; Buyer's Procurement of Substitute Goods

1. Law
2. Georgia Code
3. Commercial Code
4. Sales
5. Remedies
6. "Cover"; Buyer's Procurement of Substitute Goods

1. After a breach within Code Section 11-2-711 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 (Code Section 11-2-715), but less expenses saved in consequence of the seller's breach.
3. Failure of the buyer to effect cover within this Code section does not bar him from any other remedy.

(Code 1933, § 109A-2 - 712, enacted by Ga. L. 1962, p. 156, § 1.)

Law reviews.

- For article discussing the applicability of warranty provisions under the Uniform Commercial Code to domestic solar energy devices, see 30 Mercer L. Rev. 547 (1979).

JUDICIAL DECISIONS

Whether plaintiff-buyer has made cover purchases in reasonable manner poses classic jury issue. American Carpet Mills v. Gunny Corp., 649 F.2d 1056 (5th Cir. 1981).

Evidence of cost of bedspreads purchased to replace defective spreads is admissible to prove cover. Austin Lee Corp. v. Cascades Motel, Inc., 123 Ga. App. 642, 182 S.E.2d 173 (1971).

Labor and repair expenses incurred by buyer who chooses remedy of cover under O.C.G.A. § 11-2-711(1)(a) are properly recoverable as incidental and consequential damages. Poultry Health Serv. of Ga., Inc. v. Moxley, 538 F. Supp. 276 (S.D. Ga. 1982).

Expenses incident to breach.

- Jury may have been authorized to find that ultimately expenses incurred by a seller to test allegedly defective carpet matting material were incurred "in connection with effecting cover," or even "in inspection" of the goods, and more generally, a jury may have found the testing costs to have been a "reasonable expense" incurred by the seller "incident to" a supplier's breach; therefore, the expenses may have been recoverable as incidental damages under O.C.G.A. § 11-2-715(1), and the trial court did not err in so ruling in entering partial summary judgment. Mitchell Family Dev. Co. v. Universal Textile Techs., LLC, 268 Ga. App. 869, 602 S.E.2d 878 (2004).

Cited in Bigelow-Sanford, Inc. v. Gunny Corp., 649 F.2d 1060 (5th Cir. 1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22 Am. Jur. 2d, Damages, § 509. 67A Am. Jur. 2d, Sales, §§ 1171-1178.

6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:738.

U.L.A.

- Uniform Commercial Code (U.L.A.) § 2-712.

ALR.

- Loss of anticipated profits as damages for breach of seller's contract as to machine for buyer's use, 32 A.L.R. 120.

Necessity that buyer, relying on market price as measure of damages for seller's breach of sale contract, show that goods in question were available for market at price shown, 20 A.L.R.2d 819.

Measure and elements of recovery of buyer rescinding sale of domestic animal for seller's breach of warranty, 35 A.L.R.2d 1273.

Measure and elements of buyer's recovery upon revocation of acceptance of goods under UCC § 2-608(1), 65 A.L.R.3d 388.

What constitutes "cover" upon breach by seller under UCC § 2-712(1), 79 A.L.R.4th 844.

What constitutes warranty explicitly extending to "future performance" for purposes of UCC § 2-725(2), 81 A.L.R.5th 483.

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