Where the buyer wrongfully neglects or refuses to pay for or to accept the goods, the seller may maintain an action for the price where the property has passed or the price is payable on a day certain, and otherwise an action for damages for non-acceptance. The damages recoverable on either side of a contract of sale are governed by the principle long associated with HADLEY VS. BAXENDALE (1854) 9 EXCH 341, which Act 137 reflects: the injured party recovers such loss as arises naturally, in the ordinary course of things, from the breach, together with such loss as may reasonably be supposed to have been in the contemplation of the parties, at the time they contracted, as the probable result of the breach. Losses outside that measure are too remote to be recovered.
The governing idea, common to the Act and to the rule in HADLEY VS. BAXENDALE (1854) 9 Exch “341”, is that the law compensates the loss that flows naturally from the breach or was within the contemplation of the parties, and no more. The principle was applied in KWETEY VS. BOTCHWAY [1980] GLR 722, which held that, a buyer deprived of a fishing boat could not recover the profits she hoped to earn from fishing, such profits being merely speculative and not a loss actually sustained nor flowing naturally from the non-delivery; her proper measure was the cost of acquiring a substitute, and as the price had been repaid her damages were nominal. To like effect is TAWIAH VS. GHANA CIVIL AVIATION AUTHORITY [1989-90] 1 GLR 542, applying Sections 54 and 56 and the available-market measure. These authorities bear directly on the counterclaim, to which we now come: a claim for speculative loss of use, unsupported by proof of actual loss, attracts no more than nominal damages.
