Also known as: nondelivery · non delivery
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A seller's failure to deliver goods as required under a contract for sale. The failure constitutes a breach entitling the buyer to damages measured by the difference between market price and contract price.
A seller's failure to deliver goods as required under a contract for sale when performance has become impracticable due to a supervening contingency whose nonoccurrence was a basic assumption of the contract.
A seller's failure to deliver goods as required under a contract for sale. The failure constitutes a breach entitling the buyer to damages measured by the difference between market price and contract price.
Select any source to read its text and confirm it supports the definition.
A seller's failure to deliver goods as required under a contract for sale when performance has become impracticable due to a supervening contingency whose nonoccurrence was a basic assumption of the contract.
Select any source to read its text and confirm it supports the definition.
Each sense below has its own examples, sources, and questions.
New Horizon Media failed to deliver the final shipment of media equipment to Nicholas Nunez after he repudiated payment on an earlier installment. Nicholas Nunez canceled the contract and pursued recovery of damages for the non-delivery.
Nimbus Cloud refused to deliver servers to Noreen Nguyen after market prices rose sharply. Noreen Nguyen learned of the non-delivery and calculated damages as the difference between the higher market price at that time and the contract price.
Noah Nakamura repudiated a grain contract before any delivery occurred. The buyer waited a commercially reasonable time then sought damages for the non-delivery rather than attempting cover.
The buyer may 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, together with incidental and consequential damages less expenses saved.
Supporting sources
A buyer's repudiation justifies the seller's withholding of delivery, so the buyer cannot treat the seller's lawful non-delivery as a new breach giving rise to damages.
Supporting sources
Nile Shipping contracted to supply Nora Nash with specialized cargo containers. A sudden government order halted all shipments of the required materials from the sole approved source. Nile Shipping notified Nora Nash of the resulting non-delivery and ceased performance.
Nordic Ventures agreed to deliver equipment to Neil Nair in monthly installments. A raw-material shortage affected only part of Nordic Ventures' capacity. Nordic Ventures promptly notified Neil Nair of the non-delivery and the estimated quota available.
Gulf Oil faced sharply increased costs after an oil embargo and notified Eastern Air Lines of resulting delivery problems. Eastern Air Lines sued for non-delivery, but Gulf Oil defended on grounds of commercial impracticability.
Non-delivery is excused when performance has been made impracticable by a contingency whose nonoccurrence was a basic assumption of the contract, provided the seller complies with the notice and allocation requirements.
Supporting sources
The seller must notify the buyer seasonably that delay or non-delivery will occur and, when allocation is required, must also provide the estimated quota made available to the buyer.
Supporting sources
…Scrap Iron & Metal, Inc. , 600 F.2d 103, 110 (7th Cir. 1979), the court upheld a jury verdict for plaintiff-buyer in a suit for nondelivery, affirming the exclusion of parol evidence of an additional term that seller’s obligation to sell scrap metal was conditioned on its ability to obtain the metal from a particular…