ABSTRACT
The problem with allowing the party not in breach to behave in this fashion is that it could easily lead to a wasteful use of resources, particularly where contracts for the sale of goods are concerned, since, if the seller knows that the buyer is unwilling to go through with his contract, he is aware that he is enforcing a sale to someone who places little or no value on the thing contracted for. In order for this possibility to arise, property in the goods contracted for must have passed to the buyer.31 Accordingly, if the contract provides that property is not to pass until the time of delivery,32 but before that date, the buyer refuses to accept the goods, the seller’s only remedy will be one for damages.33 Conversely, if property passes at the time of contracting and the buyer declines to take delivery, the seller may sue for the price, provided he has retained possession. If the seller sues for the price, the buyer will be forced to take delivery, which may not necessarily be the most desirable outcome if there is an available market and the seller could easily dispose of the goods to an alternative purchaser. Conversely, the action for the price appears to be a perfectly sensible alternative to an action for damages where there is no available market and the seller would find it difficult to dispose of the goods elsewhere.
