Damage Remedies Under the Emerging Article 2 - An Essay Against Freedom
60 Pages Posted: 27 Jan 2016 Last revised: 9 Feb 2016
Date Written: 1997
Unquestionably, the most important remedy innovation of the Uniform Commercial Code has been to give primacy to damage remedies based on actual substitutions rather than to those based on hypothetical ones. The laudable effect is that damages based on market price have been reduced to a secondary status, to be used only when the facts of the case do not allow for a remedy based on an actual substitution.The net result has been that Code damages more closely approximate the injured party's lost expectation and that windfall recoveries are avoided. This Essay seeks to demonstrate that Revised Article 2-803(c) threatens to undo this progress and once again to give ascendancy to damage remedies based on hypothesis rather than actual fact.
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