1. Do you agree with Judge Hand that there was no merit in the buyer's claim for the machinery and rubber which it had purchased for the "reclaim department," making allowance for their scrap or other disposal value? And should not some allowance be made, by way of deduction from the $3,000 recovery, for the increased value of the buyer's factory now that it has the new foundation?3
2. If the seller can show what the losses would have been, then, according to Judge Hand, the losses are to be deducted from the $3,000 recovery. Do you assume that if the buyer could show that the reclaimed rubber operation would have been profitable, providing the Refiners had been delivered on time, then the profits should be added to the $3,000 for the foundation? Would there be at that point any problem of "double recovery" like the one that disturbed Justice Holmes in Globe Refining, supra p. 1144? Or was Holmes wrong in that case?4
3. If the principle case came up under the Uniform Commercial Code, could the buyer recover the cost of the foundation under §2-715, set out supra p. 1133? Would the cost be "incidental damages" under §2- 715(1) or "consequential damages" under §2-715(2)?5
4. In his opinion, Judge Hand digests the early Connecticut case of Bush v. Canfield. Do you think the result in that case a sensible one? The amount recovered by the plaintiff in the Bush case appears to have placed him in a position better than the one he would have been in had he received the defendant's performance. What justifies an award that gives the injured party more than his expectancy? Can the result in Bush v. Canfield be reconciled with the Acme Mills case, supra p. 1061? With the general proposition that contract damages should be compensatory no more, no less? With Judge Posner's account, supra p. 1118, of the economic rationale for protecting the promisee's expectancy? With Judge Hand's assertion, in the L. Albert case, that any losses avoided as a result of the defendant's breach should (in principle) be deducted from the plaintiff's recovery?
June 02, 2014
Kessler, Gilmore & Kronman
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