KANSAS COMMENT, 1996

1. This section deals with the remedies available to the buyer after it has accepted the goods and the time for revocation of acceptance has passed. Subsection (1) provides that if the buyer gives the notice required under section 84-2-607(3), it may recover as damages for any nonconformity the loss resulting in the ordinary course of events. The nonconformity referred to in subsection (1) includes any failure of the seller to perform according to its contract obligations. In such a case, the buyer is permitted to recover for its loss "as determined in any manner which is reasonable."

2. Subsection (2) describes the standard measure of damages for breach of warranty, unless special circumstances require otherwise. A buyer may recover for breach of warranty the difference, at the time and place of acceptance, between the market value of the goods accepted and the market value of the goods had they been as warranted. This is often called the buyer's "primary economic loss." Market value is not necessarily the same as the contract price, although contract price may be good evidence of market value. When repair of the goods is possible, the best measure of damages for breach of warranty is the cost of repair. International Petroleum Serv., Inc. v. S&N Well Serv., Inc., 230 K. 452, 639 P.2d 29 (1982) (used goods). If the cost of repair exceeds the price of the goods, however, the purchase price should serve as a cap on damages, at least if replacement goods are available. If repair does not give the goods their full warranted value, the buyer should be able to recover any remaining difference as well. If the goods cannot be repaired, the court will need to determine their value as warranted and their value as accepted. In unusual cases, particularly when the seller makes an expansive performance guaranty, the measure of damages under this section may exceed the purchase price. See Chatlos Sys., Inc. v. National Cash Register Corp., 670 F.2d 1304 (3d Cir.), cert. dismissed, 457 U.S. 1112 (1982).

3. Special circumstances may change the basic measure of damages for breach of warranty under subsection (2). For example, in Ricklefs v. Clemens, 216 K. 128, 531 P.2d 94 (1975), the Kansas Supreme Court held that damages for breach of warranty of title should be measured at the time the buyer lost possession rather than at the time the buyer accepted, relying on this language. Special circumstances may also arise when the buyer's subjective value of the goods differs from their market value.

4. Under subsection (3), the buyer also may recover incidental and consequential damages. See 84-2-715.

Law Review and Bar Journal References:

"Remedies for Breach of Sales Contract Under the Code," Keith Hey, 7 W.L.J. 35, 42 (1967).

Landlord-tenant implied warranty of habitability, 22 K.L.R. 666, 674 (1974).

"Beefing Up Product Warranties: A New Dimension In Consumer Protection," Barkley Clark, Michael J. Davis, 23 K.L.R. 567, 575, 601 (1975).

Survey of contracts, UCCC and UCC, Franklin E. Lynch and Larry Schneider, 15 W.L.J. 324, 330, 331 (1976).

Strict liability in tort as adopted in Kansas, 25 K.L.R. 462, 467, 468 (1977).

"Lost Profits and Hadley v. Baxendale," Wyatt McDowell Wright, 19 W.L.J. 488 (1980).

"Survey of Kansas Tort Law," William E. Westerbeke and Reginald L. Robinson, 37 K.L.R. 1005, 1038 (1989).

CASE ANNOTATIONS

1. Court's instruction on measure of damages conformed to provisions of section and PIK (13.16); breach of warranty action. Brunner v. Jensen, 215 Kan. 416, 429, 524 P.2d 1175.

2. Measure of damages for breach of warranty of title to automobile determined; applied with K.S.A. 84-2-302, 84-2-715. Ricklefs v. Clemens, 216 Kan. 128, 131, 132, 133, 134, 135, 531 P.2d 94.

3. Trial court correctly instructed jury concerning damages allowable under this section and K.S.A. 84-2-715. Service Iron Foundry, Inc. v. M. A. Bell Co., 2 Kan. App. 2d 662, 678, 679, 588 P.2d 463.

4. Party claiming incidental and consequential damages must present evidence of such damages and must comply with UCC requirements to recover such damages. International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 460, 462, 639 P.2d 29 (1982).

5. Damages may include interest on moneys paid under contract; prejudgment interest on unliquidated damages not allowed. Schatz Distributing Co. v. Olivetti Corp. of America, 7 Kan. App. 2d 676, 681, 683, 647 P.2d 820 (1982).

6. Directed verdict for defendants erroneous; disputed material facts on issue of buyer's entitlement to remedies provided hereby unresolved. Stair v. Gaylord, 232 Kan. 765, 772, 659 P.2d 178 (1983).

7. Directed verdict on breach of warranty claim proper where damages recoverable under K.S.A. 84-2-315 subsumed by fraud claim. K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148 (1985).

8. Consequential damages to plaintiff were properly submitted to jury under facts in this case. Cricket Alley Corp. v. Data Terminal Systems, Inc., 240 Kan. 661, 667, 732 P.2d 719 (1987).

9. Incidental damages from breach of sales contract must be reasonably-contemplated probable result of breach. GFSI, Inc. v. J-Loong Trading, Ltd., 505 F. Supp. 2d 935, 939, 941, 942, 947 (2007).

10. Proof of damages is an essential element in an action for breach of express warranty. Griffitts & Coder Custom Chopping v. CNH Ind. Am., 438 F. Supp. 3d 1206, 1250 (D. Kan. 2020).