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Similarly, accepting the product and claiming resulting damages would not be advisable either, because industry precedent following a breach of contract for size limits damages to the difference between the market value of the product you ordered and the market value of the product you received. Therefore, because in this case the product you received was worth more than the product you ordered, you would not be able to establish damages resulting from the shipper’s breach.
Alternatively, before receiving the product, you could have attempted to negotiate a price adjustment with your shipper. Although the shipper may not have agreed to a significantly reduced price, at least this would have given both parties a chance to discuss options before the product was resold for far less than its commercial value. Frankly, if $5.00 per carton on a $13.00 market was the best you could do, it appears this product should have been rejected upon arrival. Following the rejection you would have been entitled to damages equal to the destination market value of the larger limes you ordered (175s), and your shipper would have been free to make arrangements to resell the limes it mistakenly shipped—thereby relieving you of the responsibility for selling the limes.
However, because the terms were modified to P.A.S., at this point we would encourage you to work out a compromise settlement with your shipper. If this dispute must be decided formally, you may be found liable for the $13.00 average market value of the limes you received, less 20 percent for customary “profit and handling,” less the cost of your freight—roughly a $7.00 per carton return.
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Your questions? Yes, send them in. Legal answers? No, industry knowledgeable answers. If you have questions or would like further information, email tradingassist@bluebookservices.com.
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