The buyer's right to restitution under subsection (2) of this Code section is subject to offset to the extent that the seller establishes:
A right to recover damages under the provisions of this article other than subsection (1) of this Code section; and
The amount or value of any benefits received by the buyer directly or indirectly by reason of the contract.
Where a seller has received payment in goods their reasonable value or the proceeds of their resale shall be treated as payments for the purposes of subsection (2) of this Code section; but if the seller has notice of the buyer's breach before reselling goods received in part performance, his resale is subject to the conditions laid down in this article on resale by an aggrieved seller (Code Section 11-2-706).
(Code 1933, § 109A-2 - 718, enacted by Ga. L. 1962, p. 156, § 1.)
Law reviews.- For article, "Consumer Protection Against Sellers Misrepresentations," see 20 Mercer L. Rev. 414 (1969). 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). For note, "Buyer's Right to Revoke Acceptance Against the Automobile Manufacturer for Breach of its Continuing Warranty of Repair or Replacement," see 7 Ga. L. Rev. 711 (1973). For comment on Felder v. Neeves, 36 Ga. App. 41, 135 S.E. 219 (1926), see 1 Ga. L. Rev. No. 1 P. 51 (1927). For comment, "Refocusing Liquidated Damages Law for Real Estate Contracts: Returning to the Historical Roots of the Penalty Doctrine," see 39 Emory L.J. 267 (1990).
JUDICIAL DECISIONS
Repurchase offer agreed to as part of agreement.
- Where it was determined that parties had agreed upon repurchase offer of seller in event of dissatisfaction of buyer as part of enforceable agreement, enforcement of such offer was reasonable measure of recovery under O.C.G.A. § 11-2-718(1). All-Co Drainage & Bldg. Prods., Inc. v. Umstead Enters., Inc., 123 Ga. App. 244, 180 S.E.2d 250 (1971).
RESEARCH REFERENCES
Am. Jur. 2d.
- 63 Am. Jur. 2d, Products Liability, § 659 et seq. 67A Am. Jur. 2d, Sales, §§ 894-903.
6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:790.
C.J.S.- 25 C.J.S., Damages, § 113.
U.L.A.- Uniform Commercial Code (U.L.A.) § 2-718.
ALR.
- Effect of stipulation for return of deposit or advance payment if the order is not accepted, 1 A.L.R. 1513.
A provision in land contract for pecuniary forfeiture or penalty by a party in default as affecting the right of the other party to specific performance, 32 A.L.R. 584; 98 A.L.R. 877.
Provision in land contract for pecuniary forfeiture or penalty upon default of the purchaser as affecting the vendor's right to maintain an action for the purchase price, 32 A.L.R. 617.
Validity and effect of provision in contract of sale, with reservation of title, for collection of unpaid purchase money after retaking the property, 43 A.L.R. 1243.
Provision for liquidated damages in contract for sale of goods, 138 A.L.R. 594.
Necessity of buyer's actual knowledge of disclaimer of warranty of personal property, 160 A.L.R. 357.
Contractual liquidated damages provisions under UCC Article 2, 98 A.L.R.3d 586.
Modern status of defaulting vendee's right to recover contractual payments withheld by vendor as forfeited, 4 A.L.R.4th 993.
Contractual provision for per diem payments for delay in performance as one for liquidated damages or penalty, 12 A.L.R.4th 891.