Buyers under a contract are entitled ‘to opt for clarity and certainty if they choose, by waiting until the end of the shipment period’, even though it may be clear that the sellers are in default, rather than allowing themselves to have to declare default following an earlier and possibly curable breach. The sellers were entitled to damages in the ordinary way i.e. based on the difference between the contract prices and the appropriate market price because clause 17(a) contained no option in the sense of an irrevocable election but merely a choice of remedies. While the buyers were in breach before the end of each shipment period they were not entitled to have damages assessed by reference to such earlier dates because (i) the breaches were not breaches of condition and even if they were the sellers were entitled to treat the contract as subsisting; and (ii) the sellers were entitled to wait until the end of each shipment period when the buyers were certainly and irretrievably in default and have damages assessed by reference to that date.
Judges:
Kerr J
Citations:
[1977] 2 Lloyds Rep 570
Jurisdiction:
England and Wales
Cited by:
Cited – Fleming and Wendeln Gmbh and Co v Sanofi Sa/Ag ComC 20-Mar-2003
The parties concluded a contract for the sale and purchase of 20,000MT up to 30,000MT at Sellers’ option Russian/Ukrainian black sunseed crop 1997. The price was to ‘be fixed for each shipment latest 15 days prior delivery . . In case . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 06 December 2022; Ref: scu.180031
