As far as profiting from hypothetical things that never happened, see Joe Jamail:
http://www.texasmonthly.com/articles/the-man-who-crushed-tex...
If you want to resort to talking about contract law, then there's obviously no case at all, there's a contract on Stubhub and it's explicit that the buyer has no further recourse. End of discussion.
In the hypothetical, which I'm referencing, my argument holds. If you've ever been involved in actual litigation you'd know that proving damages for hypothetical things that might have happened is really hard to do, and that specific performance is an equity remedy and while possible, is generally a last resort.
In the actual situation under discussion, CA small claims is generally not a court of equity unless specifically authorized by statute, notwithstanding the perishable nature of these tickets and likelihood of even being able to get an argument heard before the game took place.
That's not the case. Buyers release and limit various remedies as against Stubhub in the user agreement but not against the seller. From the terms of service:
"Commitment to Supply.
By listing a ticket for sale, you are making a binding offer to sell that ticket to a Buyer who purchases the ticket for the price you have specified. When a Buyer accepts your offer by purchasing your ticket through our Site or Services, you are contractually bound to deliver that exact ticket for the specified price and within the required delivery timeframe. You are obligated to monitor your inventory and ensure all listings are accurate. Under no circumstances may Sellers cancel orders at one price and repost the same tickets for a higher price. Failure to fulfill your orders will lead to charges as stated in the Seller Policies.
...
Buying Tickets.
You are responsible for reading the complete listing before making a commitment to buy tickets. When placing an order, you are entering into a binding contract with the Seller to purchase those tickets. Payment is remitted to StubHub and disbursed to the seller according to our payment policy. All Sales are Final. Except for cancelled events, you will not receive a refund for completed purchases. You cannot change or cancel any orders after the sale is complete."
The Seller policy specifies a breaching seller's liability to Stubhub but it doesn't limit in any way a breaching seller's liability to the buyer.
Among the many issues, another raised here is the presence of specifically enumerated remedies:
> Failure to fulfill your orders will lead to charges as stated in the Seller Policies.
Which could well be interpreted as limiting the liability of the seller to the fines specified in the seller policies.
Clearly there's some kind of contract here to give money in exchange for the ticket -- the question is how high are the damages in the event of non performance of the contract, and what further remedies are available once a refund has been issued.
As for remedies, see my post above. The usual measure of damages in contract is expectation, not restitution. Breach of contract claims deal with "hypothetical things that never happened" all the time, that's required by the very nature of expectancy damages. And in any event this is an easy case as the FMV of the tickets at the time of breach is easy to calculate.
This is just like selling 100 shares of AAPL and then before T+3 happens deciding you aren't going to honor the sale because the price has since gone up. You aren't going to get away with just canceling the sale and returning the money.
Edit: You don't seem to understand that damages, legally speaking, include not getting something valuable just as much as it includes the loss of something valuable. And you are being patronizing where you have no reasonable cause to be, given that you've apparently never been to law school. In light of the latter point, I have no further interest in this conversation.
There is some resemblance but no, actually this is not just like that at all. One of the two things is a financial instrument and security and one isn't, the primary purpose of the ticket purchase is to gain the personal enjoyment of attending a sporting event. A ticket is not an asset like a stock or real estate.
I get the concept in the abstract for sure, and it's not an impossible argument. My point though, borne of some related experience, is that it's going to be awfully hard to prove damages beyond the money spent, and actual tangible consequential damages if any. Many intuitively think the legal system should work the way you describe, myself included, but in practice it has more of a laser-focus on the financial aspects of a transaction only.
Here's a discussion of a very similar situation: http://wileylegal.com/super-bowl-breaches-of-contract/
Money quote: "Contract Law remedies are designed to retrace steps in an effort to put the injured party back in the same financial place they would be had the contract been properly performed. Many argue that this approach doesn’t account for emotional damage and disappointment, and they are correct."
Consequential Damages: These are intended to reimburse the injured party for indirect damages other than contractual loss; for example, loss of business profits due to an undelivered machine. In order to recover, the injuries must "flow from the breach," i.e. be a direct result of the breach, and be reasonably foreseeable to both parties when they entered into the contract.
Your opinion sounds like it comes from experience, which is usually useful in legal matters. However, buying a new ticket at the inflated price seems very reasonable to foresee by both parties and the small-claims court judges I've known are usually no-nonsense. If this came up in my life I would personally buy the tickets and take the risk in small claims court 3 months later.