《美国统一商法典》中的卖方救济

第一节　《美国统一商法典》中的卖方救济

《美国统一商法典》提供了四种卖方救济的计算方式，分别为:

1.统一商法典§ 2－706所规定的，由于买方未能接收货物或错误拒收的情况下，如果卖方转售货物，其中“the seller may resell the goods concerned or the undelivered balance thereof”。条件是这种转售“is made in good faith and in a commercially reasonable manner”，那么卖方可以获得的赔偿是“the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article(Section 2－710)，but less expenses saved in consequence of the buyer's breach”。而且这种转售“must be reasonably identified as referring to the broken contract， but it is not necessary that the goods be in existence or that any or all of them have been identified to the contract before the breach”。

§ 2－706(3)规定如果这种转售是一种非公开的转售“the seller must give the buyer reasonable notification of his intention to resell”。如果这种转售是一种公开的转售， § 2－706(4)要求“(a)only identified goods can be sold except where there is a recognized market for a public sale of futures in goods of the kind;and(b)it must be made at a usual place or market for public sale if one is reasonably available and except in the case of goods which are perishable or threaten to decline in value speedily the seller must give the buyer reasonable notice of the time and place of the resale;and(c)if the goods are not to be within the view of those attending the sale the notification of sale must state the place where the goods are located and provide for their reasonable inspection by prospective bidders;and(d)the seller may buy”。

2.统一商法典§ 2－708(1)所规定的，由于买方未能接收货物或错误拒收的情况下，而卖方未进行转售或卖方未根据转售差价索赔，根据§ 2－708第(1)款， “Subject to subsection(2)and to the provisions of this Article with respect to proof of market price(Section 2－723)，the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article(Section 2－710)，but less expenses saved in consequence of the buyer's breach”。

3.统一商法典§ 2－708(2)所规定的，如果根据上述第(1)款的规定不足以补偿卖方的损失，卖方可以要求的损害赔偿为“the profit(including reasonable overhead)which the seller would have made from full performance by the buyer，together with any incidental damages provided in this Article(Section 2－710)，due allowance for costs reasonably incurred and due credit for payments or proceeds of resale”。

4.统一商法典§ 2－709所规定的合同价款。

此外，卖方可以要求上述损失中的其他损失§2－710(“Seller's Incidental Damages”)。这里的其他损失指“any commercially reasonable charges，expenses or commissions incurred in stopping delivery， in the transportation， care and custody of goods after the buyer's breach， in connection with return or resale of the goods or otherwise resulting from the breach”。

案例24

Afram Export Corp.v.

Metallurgiki Halyps，S.A.

772 F.2d 1358 C.A.7(Wis.)，1985.

POSNER，Circuit Judge.

The appeal and cross-appeal in this diversity breach of contract suit raise a variety of interesting issues，in particular of personal jurisdiction and contract damages.

Afram Export Corporation，the plaintiff，is a Wisconsin corporation that exports scrap metal.Metallurgiki Halyps，S.A.，the defendant，is a Greek corporation that makes steel.In 1979，after a series of trans-Atlantic telephone and telex communications，the parties made a contract through an exchange of telex messages for the purchase by Metallurgiki of 15 000 tons of clean shredded scrap， at $ 135 per ton， F.O.B.Milwaukee， delivery to be made by the end of April.Metallurgiki apparently intended to use the scrap to make steel for shipment to Egypt，pursuant to a contract with an Egyptian buyer.Afram agreed to pay the expenses of an agent of Metallurgiki—Shields—to inspect the scrap for cleanliness before it was shipped.

The scrap for the contract was prepared，in Milwaukee，by Afram Metal Processing Company.Both Afram Metal Processing and the plaintiff Afram Export are wholly owned subsidiaries of Afram Brothers.All three are Wisconsin corporations，and have the same officers and directors.Unless otherwise indicated，when we say“Afram”we mean“Afram Export.”

Shields arrived to inspect the scrap on April 12.He told Afram that the scrap was clean but that Metallurgiki would not accept it，because the price of scrap had fallen.Sure enough， Metallurgiki refused to accept it.Afram brought this suit after selling the scrap to other buyers.Metallurgiki unsuccessfully challenged the court's jurisdiction over it，then filed a counterclaim alleging that Afram had broken the contract and had thereby made it impossible for Metallurgiki to fulfill its contract with the Egyptian purchaser.

After a bench trial，the district judge gave judgment，for Afram for $ 425 149 and dismissed the counterclaim.592 F.Supp.446(D.Wis.1984)，Metallurgiki has appealed from the judgment for Afram， and * 1 362 Afram has cross-appealed，contending that the judge should have given it the full damages it sought based on the difference between the contract price and the cover price— $ 483 750—plus incidental damages of$ 40 665， prejudgment interest，the costs of a so-called public sale，and attorney's fees for defending against the counterclaim.

Afram claims that it sold all of the scrap rejected by Metallurgiki at a public sale on June 15， 1979，and that its damages should therefore be based on the price of that sale，which was $ 102.75 per ton.The district judge disagreed.He found that two-thirds of the scrap had been sold at a substantially higher price to Luria Brothers on June 4($ 118—actually somewhat less，because Afram defrayed some freight costs)and the other third to International Traders on September 15 at a price of $ 103.Afram points out that the sale on June 4 actually was made by its affiliate，Afram Metal Processing Company，and further argues that since all Afram scrap is sold from the same pile in Milwaukee it is arbitrary to treat the first sale after the breach of contract as the cover transaction， rather than the sale that Afram designated as that transaction.

We agree with the district judge that the sale on June 4 was a cover transaction，even though the nominal seller was a different corporation from the plaintiff.Not only are both corporations wholly owned subsidiaries of another corporation，not only do all three corporations have the same officers and directors，but the record indicates substantial commingling of assets and operation of the three corporations as a single entity.Shortly after Metallurgiki's rejection，Zeke Afram，an officer of both Afram Export(the party to the contract with Metallurgiki)and Afram Metal Processing(the nominal owner of the scrap sold on June 4)，called Luria Brothers and explained that he had extra scrap for sale because of a buyer's breach;apparently he did not bother to indicate which Afram corporation he was calling on behalf of.The June 4 sale followed shortly.The conversation and the timing of the sale are powerful evidence that the breach enabled the sale—that it would not have occurred but for the breach—and hence that the revenue from the sale must be subtracted from the contract price to determine Afram's loss.Cf.Servbest Foods，Inc.v.Emessee Industries，Inc.，82 Ill.App.3d 662，668－72，37 Ill.Dec.945，951－53 403 N.E.2d 1， 7－9(1980)．

But this does not dispose completely of the issue of the cover price.If the sale on June 15 was “made in good faith and in a commercially reasonable manner， ”it fixed Afram's damages on the remaining one-third of the scrap.UCC § 2－706(1)，Wis.Stat.§ 402.706(1)．The question may seem less than earthshaking since the June 15 sale price and the September sale price which the district court used as the cover price for the remaining third were only 25 cents per ton apart.But the bona fides of the June 15 sale casts additional light on the intercorporate relations of the Afram group and hence on the proper interpretation of the sale to Luria Brothers.In any event，the district judge was entitled to find that neither condition in section 2－706(1)was satisfied.Cf.Coast Trading Co.v.Cudahy Co.， 592 F.2d 1074， 1080－81(9th Cir.1979)．The June 15“sale”was about as pure a bookkeeping transaction—* 1 368 as empty of economic significance—as can be imagined.Cf.Milbrew v.Commissioner of Internal Revenue， 710 F.2d 1302， 1305(7th Cir.1983)．It consisted of a transfer of the scrap on the books of one affiliated corporation to the books of another.The transferor and transferee were not only under common ownership but were operated as if they were limbs of a single organism.The scrap itself was not moved;it remained on the scrap heap till sold later on.No invoice or check for the sale was produced at trial.The inference that the sale was designed simply to maximize the enterprise's damages，leaving it free to resell the scrap at higher prices later on，is overpowering.The sale of the scrap three months later to International Traders at a(slightly)higher price provided better evidence of what the enterprise actually lost，so far as the scrap not sold to Luria Brothers is concerned，by Metallurgiki's breach of contract.

The next issue relates to incidental damages， which the Uniform Commercial Code allows a seller who is the victim of a breach of contract to recover in addition to the difference between sale price and cover price.U.C.C.§ 2－706(1)，Wis.Stat.§ 402.706(1)．Incidental damages are “any commercially reasonable charges，expenses or commissions incurred in stopping delivery，in the transportation，care and custody of goods after buyer's breach，in connection with return or resale of the goods or otherwise resulting from the breach.”U.C.C.§ 2－710，Wis.Stat.§ 402.710.Afram says it borrowed $ 2.5 million from a bank of which $ 2.025 million was to finance the purchase of the junked cars that it shredded in order to produce scrap in the form called for by the contract with Metallurgiki.It has calculated the interest(some $ 40 000)that it paid between the date of breach and the date of cover on the amount of the loan used to finance the cars.But it can recover this interest，if at all，only as incidental damages，and not as consequential damages，for under the Uniform Commercial Code consequential damages are a buyer's，not a seller's，remedy.See UCC § 2－715，Wis.Stat.§ 402.715;Nobs Chemical，U.S.A.，Inc.v.Koppers Co.，616 F.2d 212，216(5th Cir.1980)．

The line between incidental and consequential damages is rather unclear.It may help in locating it to notice that in many cases of consequential damages，a buyer who is the victim of a seller's breach of contract is seeking damages for consequences that he could have avoided or minimized at lower cost than the contract breaker.EVRA Corp.v.Swiss Bank Corp.，673 F.2d 951， 957(7th Cir.1982)．In the case that established the common law's position that consequential damages are not recoverable without special notice to the seller，Hadley v.Baxendale， 9 Ex.341， 156 Eng.Rep.145(1854)，the defendant，a carrier，broke a contract with the plaintiff to deliver the plaintiff's mill shaft to the manufacturer of the shaft for repair.Because the plaintiff had no spare shaft， it was forced to shut down the mill;and it sought the profits that it lost during the period of shut-down caused by the defendant's delay in delivering the shaft.The court refused to award these damages.They could easily have been avoided by the plaintiff's having a spare shaft， which prudence dictated that a mill owner have anyway.This omission could not fairly be charged to the seller.It was not—as the prerequisite for obtaining consequential damages in a contract case has come to be called，see，e.g.，Farnsworth，Contracts § 12.14，at p.876(1982)— “foreseeable”by him，because a seller is not charged with foreseeing the buyer's imprudence.

This would be the same case，only in the unusual setting of a seller's seeking consequential damages， if Metallurgiki's breach of contract had precipitated Afram into bankruptcy because Afram was paying back-breaking interest on the loan that it had taken out to enable it to fulfill its obligations under the contract.Afram would be responsible for arranging its affairs in such a way as not to be abnormally vulnerable to a breach of contract;excessive leverage would be the counterpart to Hadley's failure to keep a * 1 369 spare shaft on hand.At the other end of the spectrum，reasonable expenses incurred by Afram in putting the scrap in a form where it would be salable to a substitute buyer would be recoverable as incidental damages;virtually by definition，such expenses could not be avoided by greater prudence on the seller's part.

The actual case is somewhere in the middle，but if we had to decide exactly where，we probably would disagree with the district judge，who regarded this as a case of consequential rather than incidental damages.Although knowledge of the details of the seller's financial arrangements is not chargeable to the buyer， it is obvious to the buyer and unavoidable by the seller that the seller will incur an interest cost(explicit or implicit，as we shall see)in the interval between the breach of the contract and the cover sale;and the party who is better able to avoid this expense and who therefore should bear the risk of its occurrence is the contract-breaking buyer，not the seller.The cases therefore allow the seller to recover the additional interest expense as incidental damages.See， e.g.， Bulk Oil(U.S.A.)， Inc.v.Sun Oil Trading Co.， 697 F.2d 481， 482－84(2d Cir.1983);Hofmann v.Stoller， 320 N.W.2d 786，792－93(N.D.1982 );Grayv.West， 608S.W.2d 771， 781(Tex.Civ.App.1980)．

The district judge also suggested that there was no damage，incidental or consequential :“presumably the interest costs for the money to purchase the junk cars would be recovered when the scrap which they had become was sold to some purchaser， ”so that Afram would be made“whole as to this cost of raw materials through the award of the difference between the contract price and the resale price.”But this implies that the price charged to the substitute buyers，Luria Brothers and International Traders，would be calculated on a cost-plus basis，and thus include the additional interest expense that Afram incurred because of Metallurgiki's breach of contract.Prices in competitive markets are not determined on that basis，however;and so far as the record shows the market for steel scrap is competitive.The prices that Luria Brothers and International Traders were willing to pay for Afram's steel scrap depended on how much these buyers would have had to pay for the product from competing sellers，not on how much extra interest Afram had to pay because of the delay in selling its scrap.

Nevertheless we agree with the district court's conclusion that Metallurgiki is not liable for the interest that Afram seeks.All the record contains is the computation of interest.There is no evidence that Afram would have repaid the loan，or$ 2.025 million of it， on payment of the contract price by Metallurgiki，had that happy event occurred.The loan agreement was not placed in evidence，and since the loan is for more than the amount used to buy the junked cars，there is no presumption that it would have been paid back as soon as the contract for which the junked cars had been bought was fulfilled.Indeed，we do not even know whether the loan was repaid when Afram resold the scrap to Luria Brothers and International Traders.For purposes of computing prejudgment interest，a separate item of damages discussed next，Afram kept on calculating interest，at the same rate(prime plus 0.5 percent)as the interest rate on the loan，right up to the date of trial;this is consistent with Afram's not having repaid the loan when it resold the scrap.

So far as the proof shows，then，Afram is not really complaining about an extra interest expense;it is complaining about losing the use of part of the money it borrowed from the bank，the part that was tied up in the junked cars longer than it would have been had Metallurgiki not broken the contract.This of course is a genuine loss;it is what economists call an“opportunity cost， ”and courts now understand that an opportunity cost is a real cost.See，e.g.，Simmons v.United States， 698 F.2d 888， 898(7th Cir.1983)．In this case it would be measured by the interest or profit that Afram could have obtained from investing，or using elsewhere in its business，the money that it would have gotten from * 1 370 Metallurgiki by the end of April if Metallurgiki had not broken the contract，but that as a result of the breach it did not get till June and September.

But a forgone profit from exploiting a valuable opportunity that the breach of contract denied to the victim of the breach fits more comfortably under the heading of consequential damages than of incidental damages.The profits that Afram might have made from using that $ 2.025 million elsewhere in its business are like the milling profits that Hadley might have made if the carrier had not delayed in delivering the mill shaft for repair.Afram has not tried to establish its lost profits from the temporary loss of the use of the $ 2.025 million;all it is seeking is the extra interest it had to pay.But its theory is one of opportunity cost，as it makes clear in its brief by stating that it would be entitled to interest as incidental damages even if it had not used borrowed money to pay for the junked cars.Afram is correct that it would incur an opportunity cost whether it used its own money or used money that it had borrowed;in either event it would lose the use of money that it could deploy elsewhere at a profit.But we do not think the law has evolved to the point where every time a buyer breaks a contract，the seller is entitled to the time value of the money tied up in the contract，as incidental damages.All the seller is entitled to is an out-of-pocket interest expense that would not have been incurred but for the breach.We have found no case where(so far as we are able to determine from the statement of facts in the case)the seller was able to recover interest on a general business loan not tied to the subject matter of the sale，but we have found two cases that imply he may not.See Schiavi Mobile Homes，Inc.v.Gironda，463 A.2d 722，727(Me.1983);S.C.Gray，Inc.v.Ford Motor Co.，92 Mich.App.789，811－12，286 N.W.2d 34， 43－44(1979)．

Thus we affirm the judgment of the district court except with respect to the denial of prejudgment interest to Afram，as to which we remand the case for a determination of the amount of prejudgment interest to which Afram is entitled at the statutory rate of five percent.Wis.Stat.§ 138.04;Kilgust Heating Div.v.Kemp， 70 Wis.2d 544，550，235 N.W.2d 292，295－96(1975)．No costs in this court.

AFFIRMED IN PART，REVERSED IN PART，AND REMANDED.

思考题

1.简述本案事实。

2.Afram公司是否进行了转售?具体情况如何?

3.法官认为应以哪次转售为准计算损害赔偿?

4.如何区分consequential damages与incidental damages?

5.Afram公司要求的利息损失是如何计算的?是否可以得到支持?

案例25

Trans World Metals，Inc.v.

Southwire Co.

769 F.2d 902 C.A.2(N.Y.)，1985.

On April 7， 1981，Trans World and Southwire negotiated by telephone for the purchase and delivery in 1982 of approximately$ 20.4 million of aluminum.The“delivery time”clause of the Trans World sales contract and the “shipment schedule”clause of the Trans World telex both state that delivery shall occur “at the rate of 1 000 mt ［metric tons］per month from January 1982 through December 1982.”

Trans World shipped about three-fourths of the first month's one thousand metric tons of aluminum during January.The remaining one-fourth of the first one thousand tons of metal was shipped between February 1 and February 11，1982.On February 17，1982，representatives of Trans World attended a meeting at Southwire's request in Carrollton，Georgia，at which Southwire sought to extend the length of the contract to two years without altering the total quantity of aluminum to be delivered.The parties did not discuss the late delivery of the aluminum ordered in January.Southwire sent no delivery instruction releases to Trans World after January 1982.

Between April 1981，when the contract was negotiated，and March 1982，the price of aluminum fell dramatically.On March 4，1982，Southwire sent Trans World a telex repudiating the entire contract，pursuant to the termination clause of the purchase contract confirmation.The telex stated:

“Pursuant to ［the termination clause］of our contract ...Southwire Company hereby notifies you of default in your performance of said contract and cancels the same because of your failure to make timely delivery of material called for by said contract.

Please advise us how to dispose of material you have late shipped，which we hold for your instruction”.

The “failure to make timely delivery”refers to shipments to be made during the first month of the twelve-month contract.The “late shipped”material consists of the $ 419 232.84 worth of aluminum shipped by Trans World in early February 1982.

The jury awarded Trans World total damages of$ 7 122 141.84，consisting of$ 6 702 529.00 for repudiation of the remaining purchase obligations of the contract and $ 419 232.84 for shipments accepted without payment by Southwire in February.［FN2］The District Court applied the New York prejudgment interest rate and awarded Trans World $1 304 804.88 in prejudgment interest，for a total of $8 426 946.72.The District Court denied Southwire's motions for judgment notwithstanding the verdict and for a new trial.This appeal followed.

JON O.NEWMAN，Circuit Judge.

Southwire complains that the damage award，calculated by the difference between contract and market prices， gave Trans World an unwarranted windfall.Southwire favors an alternative measure of damages based on the rate of profit earned by Trans World on the first month's completed shipments projected over the twelve-month life of the contract.Such a measure， Southwire argues，would better estimate the amount Trans World would have made had the contract been completed.We reject this alternative as contrary to the Uniform Commercial Code.

Seller's damages for repudiation are governed by section 2－708 of the Uniform Commercial Code.Subsection 1 of this section sets forth the general rule that damages are to be calculated by the difference between the contract and market prices:

(1)Subject to subsection(2)and to the provisions of this Article with respect to proof of market price(Section 2－723)，the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article(Section 2－710)，but less expenses saved in consequence of the buyer's breach.

N.Y.U.C.C.Law§ 2－708(1 )．The drafters of the Uniform Commercial Code recognized that this measure would not adequately compensate certain types of sellers，generally referred to as “lost volume sellers.”See J.White ＆ R.Summers，Uniform Commercial Code § 7－9，at 274－76(2d ed.1980)(“White ＆ Summers”)．Therefore，an alternative measure of damages was provided for those sellers who would be inadequately compensated by the standard contract/market price differential:

(2)If the measure of damages provided in subsection(1)is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit(including reasonable overhead)which the seller would have made from full performance by the buyer，together with any incidental damages provided in this Article(Section 2－710)，due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.

N.Y.U.C.C.Law § 2－708(2)．This measure of damages is often preferred by sellers who have not acquired the goods to be sold prior to the buyer's repudiation because such sellers often would be undercompensated by the contract/market price measure of damages.［FN3］

Southwire argues that the“lost profits”measure should also apply when the seller would be overcompensated by section 2－708(1)．We disagree.We do not doubt that the contract/market price differential“will seldom be the same as the seller's actual economic loss from breach.”White ＆ Summers § 7－7，at 269;see Peters，Remedies for Breach of Contracts Relating to the Sale of Goods Under the Uniform Commercial Code:A Roadmap for Article Two， 73 Yale L.J.199， 259(1963)．However，nothing in the language or history of section 2－708(2)suggests that it was intended to apply to cases in which section 2－708(1)might overcompensate the seller.See White ＆ Summers § 7－12，at 283.Nor has Southwire cited any New York case that interprets section 2－708(2)as Southwire urges us to interpret it.As a federal court sitting in diversity，we will not extend the application of this state law.

Nor are we convinced that Trans World has been overcompensated.No measure other than the contract/market price differential will award Trans World the“benefit of its bargain， ”that is，the“amount necessary to put ［it］in as good a position as ［it］would have been if the defendant had abided by the contract.”Western Geophysical Co.of America，Inc.v.Bolt Associates，Inc.， 584 F.2d 1164，1172(2d Cir.1978)(quoting Perma Research ＆Development Co.v.Singer Co.， 402 F.Supp.881， 898(S.D.N.Y.1975)， aff'd， 542 F.2d 111(2d Cir.)，cert.denied， 429 U.S.987， 97 S.Ct.507，50 L.Ed.2d 598(1976))．The contract at issue in this case is an aluminum supply contract entered into eight months prior to the initial deliveries called for by its terms.The last of the anticipated deliveries of aluminum would not have been completed until a full twenty months after the negotiations took place.It simply could not have escaped these parties that they were betting on which way aluminum prices would move.Trans World took the risk that the price would rise;Southwire took the risk that the price would fall.Under these circumstances，Trans World should not be denied the benefit of its bargain，as reflected by the contract/market price differential.［FN4］Cf.Apex Oil Co.v.Vanguard Oil ＆ Service Co.，760 F.2d 417(2d Cir.1985)(defaulting seller obliged to pay damages based on contract/market price differential)．

The decision primarily relied upon by Southwire is distinguishable from this case.Nobs Chemical，U.S.A.，Inc.v.Koppers Co.，Inc.，616 F.2d 212(5th Cir.1980)，involved a seller acting as a middleman.The seller in Nobs had entered into a second fixed-price contract with its own supplier for purchase of the goods to be sold under the contract sued upon;its “market price”thus had been fixed in advance by contract.Because the seller had contractually protected itself against market price fluctuation，the Fifth Circuit concluded that it would have been unfair to permit the seller to reap a riskless benefit.As that Court noted ，“the difference between the fallen market price and the contract price is ［not］necessary to compensate the plaintiffs for the breach.Had the transaction been completed，their ‘benefit of the bargain’would not have been affected by the fall in the market price....”Id.at 215.Whether or not we would have reached the same result in Nobs，here the benefit of the bargain under a completed contract would have been affected by the fall in aluminum * 909 prices.［FN5］Because Trans World accepted the risk that prices would rise，it is entitled to benefit from their fall.

...

III.

Southwire raises a number of further points on appeal.The first involves the proper determination of the market price for purposes of calculating the contract/market price differential.The jury relied upon Trans World's damage calculations，which were based on the market price as reflected by bids received on April 26(and projections discussed below)．Southwire argues that because the contract was repudiated on March 4，the market price figure used to calculate damages should be the March 4 price.We do not agree.The measure of damages set forth in section 2－708(1)is“the difference between the market price at the time and place for tender and the unpaid contract price.”N.Y.U.C.C.Law § 2－708(1)(emphasis added);cf.id.§ 2－713(1)(buyer's damages for repudiation by seller measured by contract/ market price differential“at the time when the buyer learned of the breach”)．Thus，the pertinent market price date is not the date of repudiation but the date for tender.

We would accept Southwire's argument that the date Trans World learned of the repudiation would be the correct date on which to calculate the market price had this action been tried before the time for full performance under the contract.See N.Y.U.C.C.§ 2－723(1)(market price at time aggrieved party learned of repudiation used to calculate damages in action for anticipatory repudiation that “comes to trial before time for performance with respect to some or all of the goods”)．However，where damages are awarded after the time for full performance，as in this case，the calculation of damages under section 2－708(1)should reflect the actual market price at each successive date when tender was to have been made under the repudiated installment contract.This was the rule prior to enactment of the Uniform Commercial Code.United States v.Burton Coal Co.，273 U.S.337，340，47 S.Ct.351，352，71 L.Ed.670(1927)(following repudiation of supply contract，“seller may recover the difference between the contract price and the market value at the times when and the places where deliveries should have been made”);L.W.Foster Sportswear Co.v.Goldblatt Brothers，Inc.， 356 F.2d 906，910 ＆ n.6(7th Cir.1966)(recognizing same standard under pre-U.C.C.law and U.C.C.§ 2－708);see 67A Am.Jur.2d Sales § 1115，at 505 n.19(2d ed.1985);id.§ 1118，at 510 n.50.New York did not intend to deviate from this measure of damages upon adoption of the Uniform Commercial Code.The Official Comment to section 2－708 indicates that the“prior uniform statutory provision is followed generally in setting the current market price at the time and place for tender as the standard by which damages for non-acceptance are to be determined.”N.Y.U.C.C.Law § 2－708 Official Comment 1.The “prior uniform statutory provision”indicated that where“‘there is an available market for the goods ...［damages should be measured by］the difference between the contract price and the market or current price ...when the goods ought to have been accepted，or，if no time was fixed for acceptance，then at the time of the refusal to accept.’ ”Id.§ 2－708 Practice Commentary ［quoting Sales Act § 64(McKinney's Personal Property Law § 145)］．

We therefore conclude that when calculating damages for a buyer's repudiation of an installment contract by the contract/market price differential，“time ...for tender”under section 2－708(1)is the date for each successive tender of an installment，as specified in the contract.See 67A Am.Jur.2d Sales § 1118，at 510［“Where the breach is of an installment * 910 contract，damages should be measured by the market price at the time of each delivery.”(footnote omitted)］．In this case the successive dates for tender were the last day of each month in 1982，at which time Trans World was authorized to invoice that month's shipments even if such shipments had not been“released”by Southwire's delivery instructions.A contract/market price differential should have been calculated for each month during 1982.

We recognize that the jury relied upon a damage calculation prepared for Trans World that did not use actual market prices for each month of scheduled tenders.Instead，Trans World's expert took the actual price for April 1982 and projected forward from that date“anticipated”increases of $ 15 per metric ton for each month thereafter.Though the use of such an estimate was inappropriate because the actual market price for each successive month was known by the date of the trial，Southwire has no basis for complaint.Trans World's projected monthly market prices were closer to the contract price than were the actual market prices.Trans World therefore received less in damages using its expert's projection than it would have received using the correct measure.Furthermore，Southwire did not preserve at trial the factual issue as to the correct market price on each successive date of tender.Southwire did not object to Trans World's use or the accuracy of projected prices nor otherwise raise the issue with the jury，relying instead on its unsuccessful effort to convince the jurors that the contract/market price differential was not an appropriate method for calculating damages.Having failed to preserve the point for appeal，Southwire may not now raise the issue for the first time.See，e.g.，Schmidt v.Polish People's Republic， 742 F.2d 67， 70(2d Cir.1984)．

We have considered Southwire's remaining claims and find them to lack merit.The judgment of the District Court is affirmed.

思考题

1.简述本案事实。

2.本案初审法院的计算方法是什么?

3.在本案中Southwire为何主张适用2－708(2)而不适用2－708(1)，两者区别是什么?

4.法官是否支持Southwire的请求，理由是什么?

5.应当如何确定市场价格，双方各自的观点、法官的观点分别是什么?