ORS 72.7080¹
Seller’s damages for nonacceptance or repudiation

(1) Subject to subsection (2) of this section and to the provisions of ORS 72.7230 (Proof of market price: time and place) with respect to proof of market price, the measure of damages for nonacceptance 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 ORS 72.7100 (Seller’s incidental damages), but less expenses saved in consequence of the buyer’s breach.

(2) If the measure of damages provided in subsection (1) of this section 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 ORS 72.7100 (Seller’s incidental damages), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale. [1961 c.726 §72.7080 (Seller’s damages for nonacceptance or repudiation)]

Notes of Decisions

Measure­ment of damages based on lost profit may include any situa­tion where plaintiff availing self of available market would not substantially mitigate damages. Timber Access Ind. Co. v. U.S. Plywood-Champion Papers, Inc., 263 Or 509, 503 P2d 482 (1972)

Where allowing full measure of damages under this sec­tion would amount to windfall, plaintiff was entitled to compensatory award, but only up to actual loss amount recoverable under ORS 72.7060 (Seller’s resale including contract for resale). Coast Trading Co. v. Cudahy Co., 592 F2d 1074 (1979)

Where vanishing market makes market price-contract price measure of damages inadequate, lost profits may be recovered and both measures may be submitted to jury if evidence would justify award under either. Stanfill v. TAT (USA) Corp., 76 Or App 332, 709 P2d 717 (1985), Sup Ct review denied

Where plaintiff is “lost volume seller” and is entitled to damages for lost profits, “due credit for...proceeds of resale” pro­vi­sion of this sec­tion does not apply because it will not yield correct recovery. Trienco, Inc. v. Applied Theory, Inc., 102 Or App 362, 794 P2d 1239 (1990)

Where grass seed buyer failed to fulfill contractual obliga­tion to purchase grass seed ordered from seller, seller is entitled to difference between contract price and market price at time of breach, even if seller is able to resell grass seed to other buyers. Peace River Seed Co-Op v. Proseeds Marketing, 253 Or App 704, 293 P3d 1058 (2012), aff’d 355 Or 44, 322 P3d 531 (2014)

Chapter 72

Law Review Cita­tions

53 OLR 468-473 (1974); 58 OLR 545 (1980)

1 Legislative Counsel Committee, CHAPTER 72—Sales, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors072.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 72, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano072.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information