Chapter 3: Assessing damages: now or then?
This chapter argues that the market-contract price differential should be reckoned at the time of the breach. It examines four cases (two from the United States and one each from England and Israel) that raise the issue in different contexts. Two arise in cases involving anticipatory repudiation. The third was framed by the courts as whether the subject matter was unique which would justify a grant of specific performance. The final case was treated by the Israeli Supreme Court as an unjust enrichment claim for restitution. These both raise the question of whether the plaintiff would have the choice of basing its damage claim on the price at the time of breach or at some future date.
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