July 22, 2019 Substantive Law

Hidden Recovery Opportunities in Commercial Litigation: Consequential Damages

By David Berlin

The following scenario is common: A buyer purchases equipment from a seller. The purchase order includes a warranty and a consequential damages limitation clause. The buyer expects to avoid consequential damages through the device of the repair-and-replace remedy.

After delivery, the machines do not work, and the buyer asks for repairs under the warranty. The seller repeatedly promises to fix the equipment, but the machines are never repaired. The time period under the warranty ends, and the seller refuses a refund.

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