Also known as: fail to make delivery · failing to make delivery · failed to make delivery · non-delivery · failure of delivery
Written by attorneys · grounded in primary & secondary sources — see below
A seller's omission to tender goods to the buyer as required under a contract for sale. The omission may be excused when a supervening contingency renders performance impracticable or when the seller complies with a governmental order, provided the seller gives seasonable notice and allocates any remaining capacity. A buyer facing such an omission may cancel the contract and recover damages measured by the difference between market price and contract price.
Luxe Imports had contracted to deliver 5,000 handbags to TrendRack before a new customs rule barred all imports from the source region. Luxe could lawfully bring in only 500 units, allocated them fairly among buyers, and notified TrendRack of the shortfall. TrendRack refused the partial shipment and sued for the full quantity.
Metro Components received an emergency federal order halting use of its inflators and immediately stopped production of the airbags ordered by Titan Motors. Metro failed to notify Titan of the stoppage until weeks later, after Titan had already arranged alternative suppliers.
Select any source to read its text and confirm it supports the definition.
After Nova Precision delivered the first quarterly installment of parts to Alpha Metal and then failed to deliver the second installment, Alpha canceled the remaining deliveries and sued for the market price of substitute parts.
After Coastal Media failed to deliver the final batch of lighting rigs, Pine Stage purchased replacements at a higher market price and sought recovery of the difference between that price and the original contract price.
A buyer contracted to purchase corn for future delivery. After the seller repudiated, the buyer waited past the commercially reasonable time before covering and then sued for the difference between the later cover price and the contract price.
A carrier contracted to transport cargo on a specified route. After a supervening event forced a longer voyage, the carrier completed an alternative delivery and then sought extra compensation on the ground that the original route had become impracticable.
A seller is excused from delay or non-delivery when a supervening contingency renders performance impracticable or when the seller complies in good faith with a governmental regulation, provided the seller gives seasonable notice and allocates remaining capacity fairly.
Supporting sources
The seller must notify the buyer seasonably of the delay or non-delivery and, when allocation is required, of the estimated quota available to that buyer.
Supporting sources
The buyer may cancel the contract and recover damages for non-delivery measured by the difference between the market price at the time the buyer learned of the breach and the contract price, plus incidental and consequential damages.
Supporting sources
A buyer may await performance for a commercially reasonable time after repudiation. Waiting longer than that period may limit the buyer's recovery to the difference between the contract price and the market price at the end of the reasonable period.
Supporting sources
…Compare Uniform Commercial Code § 2-615(a), which provides that, in the absence of an assumption of greater liability, delay or non-delivery by a seller is not a breach if performance as agreed is made “impracticable” by the occurrence of a “contingency” the non-occurrence of which was a “basic assumption on which the contract…