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84-2-709. Action for the price. (1) 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

(a) 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

(b) 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.

(2) 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.

(3) After the buyer has wrongfully rejected or revoked acceptance of the goods or has failed to make a payment due or has repudiated (section 84-2-610), a seller who is held not entitled to the price under this section shall nevertheless be awarded damages for nonacceptance under the preceding section.

History: L. 1965, ch. 564, ยง 105; January 1, 1966.

KANSAS COMMENT, 1996

1. This section identifies the circumstances under which the seller is entitled to recover the unpaid price of the goods from the buyer. An action for price is the seller's counterpart of the buyer's action for specific performance. See 84-2-716. The seller's right to the price is completely unrelated to the passing of title.

2. Subsection (1) identifies the only three situations in which a seller may recover the price: (1) when the buyer has accepted the goods (see 1996 Kansas Comment 3 to 84-2-606); (2) when the goods have been lost or damaged after risk of loss has passed to the buyer (see 1996 Kansas Comment 2 to 84-2-510); and (3) when goods identified to the contract cannot be resold. A seller may not recover the price under this section when it has resold the goods and other remedies are available. Sharp Elec. Corp. v. Lodgistix, Inc., 802 F. Supp. 370 (D. Kan. 1992).

3. Subsection (2) requires that a seller that sues for the price hold any identified goods for the buyer. If resale becomes possible before the seller has collected any judgment, the seller may resell the goods but must apply the proceeds to the judgment. Under subsection (3), a seller whose action for price fails may nonetheless recover market damages under section 84-2-708.

Law Review and Bar Journal References:

The most extensive of the monetary claims is an action for the price, Keith Hey, 7 W.L.J. 35, 45 (1967).

"Executory Contracts and Bankruptcy: The Case for a Federal Common Law," Richard F. Broude, 17 K.L.R. 1, 13, 14 (1968).

CASE ANNOTATIONS

1. Applied; plaintiffs entitled to interest from date payment due to time check tendered. Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 367, 552 P.2d 917.

2. When third party purchases goods, UCC remedy of recovery of contract price less prejudgment sales not favored. Sharp Electronics Corp. v. Lodgistix, Inc., 802 F. Supp. 370, 375, 376, 377, 378, 379 (1992).

3. Whether measure of damages where buyer failed to make payment is contract price less market value of goods examined. Smyers v. Quartz Works Corp., 880 F. Supp. 1425, 1434 (1995).


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