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84-2-723. Proof of market price: Time and place. (1) If an action based on anticipatory repudiation comes to trial before the time for performance with respect to some or all of the goods, any damages based on market price (section 84-2-708 or section 84-2-713) shall be determined according to the price of such goods prevailing at the time when the aggrieved party learned of the repudiation.

(2) If evidence of a price prevailing at the times or places described in this article is not readily available the price prevailing within any reasonable time before or after the time described or at any other place which in commercial judgment or under usage of trade would serve as a reasonable substitute for the one described may be used, making any proper allowance for the cost of transporting the goods to or from such other place.

(3) Evidence of a relevant price prevailing at a time or place other than the one described in this article offered by one party is not admissible unless and until he has given the other party such notice as the court finds sufficient to prevent unfair surprise.

History: L. 1965, ch. 564, ยง 119; January 1, 1966.

KANSAS COMMENT, 1996

This section is aimed at alleviating some of the difficulties arising in determining market price for use under sections 84-2-708(1) and 84-2-713. Subsection (1) specifies the time for determining market price in those rare actions alleging anticipatory repudiation that come to trial before the time for performance under the contract. For discussion of the more typical case, in which the time for performance has passed, see 1996 Kansas Comment 3 to 84-2-713. Subsection (2) permits a showing of comparable market prices in a "reasonable substitute" market when the normal market has collapsed or under other circumstances when no market price is available at the applicable time and place. Subsection (3) requires the party intending to offer evidence of a substitute market to give notice to the other party.

CASE ANNOTATIONS

1. Cited in holding specific provisions of 84-2-713 prevail over general provisions in 84-1-106 when seller breaches contract for sale of goods. Tongish v. Thomas, 251 Kan. 728, 730, 840 P.2d 471 (1992).

2. Seller's director of sales testimony regarding goods market price was admissible as commercial judgment. Sharp Electronics Corp. v. Lodgistix, Inc., 802 F. Supp. 370, 376, 381 (1992).


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