![CL-2024-000457, 000458, 000459 - [2025] EWHC 1803 (Comm)](https://backend.juristeca.com/files/emisores/logo_WAai98v.png){kind=logo}
Day Certain
Day Certain
The parties advanced detailed submissions about the meaning of ‘day certain’ in s.49(2). Those submissions extended to the question whether Shell-Mex, Ltd v Elton Cop Dyeing Co, Ltd (1928) 34 Com Cas 39 was wrongly decided by Wright J (as he was then). I agree with Mr Nolan KC that the ratio of Shell-Mex is that under s.49(2), a sale contract price was only payable on a ‘day certain’ if it was payable on a date specified in (or ascertainable from) the terms of the contract that did not depend on any future or contingent event, following The Merchant Shipping Co, Ltd v Armitage (1873-74) LR 9 QB 99, at 114 (although that case concerned a statutory provision for awarding interest that one might have thought not obviously pertinent).
That interpretation was also given, obiter, by Roche J (as he was then) in Muller Maclean & Co v Leslie & Anderson (1921) 9 Ll. L. Rep. 328, and by Lord Strachan in the Court of Session (Outer House) in Henderson and Keay Ltd v A. M. Carmichael Ltd 1956 S.L.T. (Notes) 58, and it finds some support in the Australian cases. On the other hand, there is room for the view that it narrowed s.49(2) for no good reason, and may have served to obscure the essence of the sub-section, the requirement for payability ‘irrespective of delivery’; and there are obiter dicta doubting the Shell-Mex interpretation, for instance taking the view that a provision for payment a specified number of days after the date of an invoice would suffice, though the invoice date is a future contingency in the gift of the seller.
In the present case, there is a short answer to the appeals on this point. Although it came slightly buried in a final, fall-back argument on payability ‘irrespective of delivery’, Mr Debattista submitted that the relevant payment provision here was always the amended payment clause which fixed an identified, specific date by which the buyer had to pay (see paragraphs 12 and 13 above). There is in my view no answer to the claim that that made the unpaid prices claimed by the seller payable on a ‘day certain’, even if Shell-Mex is still to be followed.
The point in this case, ultimately, is that the Board of Appeal treated that as sufficient by itself to satisfy s.49(2), whereas the sub-section requires in addition payability ‘irrespective of delivery’. The question is whether on the findings of fact in the Awards, and the proper interpretation of the sub-section, the prices claimed were so payable.
Before I turn to that question, I add on ‘day certain’ that:
I would have agreed with a submission by Mr Debattista that the additional element in the amended payment clause that the buyer was to pay “in any case before breaking bulk” does not affect matters. That imposed on the buyer, in substance, an obligation to ensure that the bulk was not broken if it had not yet paid. If the buyer wished the bulk to be broken before the payment date set by the amended payment clause, it would have to choose to pay early or be in breach of contract if it went ahead. That does not generate relevant uncertainty as to the payment date set by the contract.
I would have disagreed with a further submission by Mr Debattista that the additional provision for time of payment to be of the essence affects anything. That displaced the default rule that in a contract for the sale of goods stipulations as to time of payment are not of the essence (s.10(1) of the Act), which affects the rights and liabilities arising upon breach but not the character of the payment obligation as one requiring payment on, or not on, a ‘day certain’. For example, if as the buyer said but I have not needed to decide, ‘7 days after invoice date’ is not a ‘day certain’ under s.49(2) because the invoice date will depend on future events, that relevant uncertainty is not removed by the payment deadline being of the essence.
- Heading
- Introduction
- Facts and Issues
- A Procedural Objection
- Flawed Appeal (Wrong Remedy)?
- Error of Law?
- Day Certain
- Irrespective of Delivery
- Case Law on s.49(2)
- The Seller’s Arguments
- Readie Construction & CE Energy
- Conclusions
- Appendix A – The Procedural Objection In Vitol SA v Norelf Ltd [1996] AC 800, a case under the Arbitration Act 1979 , at 814B Lord Steyn explained, in holding that a respondent did not require leave to argue on appeal that an award should
- The permissibility in principle of arguing, substantially in line with a case advanced in the arbitration, that on the facts set out in an award, a result reached by the arbitrators is correct in law
- On that question, in Ramburs Inc v Agrifert SA [2015] EWHC 3548 (Comm) at [10], Andrew Smith J considered that
- That view was not decisive in Ramburs Inc , because “ the argument that the [respondent] buyers seek to raise … was not argued in the arbitration, and certainly not distinctly argued … . More importan
- MRI Trading (paragraph 27 above) was not referred to in Ramburs Inc , and according to the report at [2016] Bus. L. R. 135, Andrew Smith J was not referred in argument to any cases not mentioned in th
- Where a respondent does oppose a leave to appeal application under s.69 , so that CPR PD62 para 12.6 requires a respondent’s notice to be filed and served, the requirement in sub-paragraph (2) to stat
- That leads me not to agree with the view that a respondent’s notice filed and served under CPR 62 para 12.6 is in every respect ‘spent’, as Andrew Smith J expressed it in Ramburs Inc , once the leave
- In MRI Trading , Eder J indeed stated in unqualified terms, at [39], that “ a party who wishes to contend that an award should be upheld for reasons not expressed (or not fully expressed) in the award
- Furthermore, although the present case disproves, with respect, Jacobs J’s claim in MUR Shipping v RTI (paragraph 22 above), at [49], that it is “ invariably the case ” that the respondent to an appli
- I therefore do not consider that either MRI Trading or Cottonex Anstalt is authority for the proposition that CPR 62 para 12.6 requires a respondent who does not oppose the leave to appeal application
- Jacobs J’s view, for the case where a respondent does oppose the leave to appeal application, is in my view consistent with what I have said in paragraph A8 above. The careful way in which Jacobs J ex
- Stepping back, there might perhaps be room to consider that it would be better to require a respondent that opposes the leave to appeal application to file and serve a document setting out the grounds
- In MRI Trading , Eder J cited, as do Russell on Arbitration , 24 th Ed. (2015) at 8-167, and Ambrose et al. at 22.29, the decision of Moore-Bick J (as he was then) in Icon Navigation Corp v Sinochem I
- Moore-Bick J concluded that a contention of that kind was not a contention that the award should be upheld for a reason not expressed within the award, but an argument that it was not just and proper
- In his reasoning, Moore-Bick J observed ( ibid , at [22]) that s.69(7) of the 1996 Act “ must be read in the context of s.69 as a whole. The intention of the legislation is that the powers of the cour
- That was also the applicable provision when Field J decided The Mary Nour (No.2) . At that time, therefore, a respondent was required, whatever their stance in relation to the grant of leave to appeal
- In Cottonex Anstalt , supra , at [41], having stated in seemingly unqualified terms that a respondent wishing to contend that the award should be upheld on other grounds had to do so at the leave to a
- Acadia Chemicals , to which Hamblen J referred, a decision of Colman J under the 1979 Act , concerned what was then RSC Order 73, rule 5(9). That rule, like CPR PD62 para 12.3(3) that followed, but un
- It is fair to expect a respondent to be limited, as in Cottonex Anstalt itself, to points it took before the arbitrators that, if sound, would defeat or avoid a point which the appellant has brought t
- Appendix B – Case Law on s.49(2) Sale of Goods Act 1893 / 1979 Chalmers, “ The Sale of Goods Act 1893 ”, took the form of a commentary on the Act by its draftsman, Sir Mackenzie Chalmers. On p.91, Chalmers explained the understanding of the law that
- The references to “ goods sold ” are to goods the property in which has passed to the buyer pursuant to the sale contract. That historical account of the indebitatus counts for recovery of the price o
- The last edition of Chalmers is the 18 th Ed. (1981). The footnote citing Dunlop v Grote remains (p.222); and the paragraph quoted above is retained as a statement of the “ History ” of s.49 (p.223)
- The view expressed in Chalmers , that in some circumstances a claim for a sale contract price might lie outside s.49 , is the view expressed 35 years later by the Supreme Court, obiter , in The Res Co
- In Dunlop v Grote , a contract for 1,000 tons of No.1 Clyde or Dundyvan pig-iron, at 95s. cash per ton, stipulated that payment was to be made on 30 April for any balance of the contract quantity not
- The defendant argued that the case was like Laird v Pim (1841) 7 M & W 474, in which Parke B. had said, at 478, that “ a party cannot recover the full value of a chattel, unless under circumstances wh
- In Laird v Pim , a purchaser had been let into possession of land it had contracted to buy, but the sale was not completed. The vendor’s claim for payment of the price failed, but at trial it was awar
- For its part, the purchaser sought to overturn the award of damages inter alia on the basis that under the law as to dependent and independent covenants set out in the notes to Pordage v Cole , a vend
- Properly understood, therefore, Laird v Pim and Dunlop v Grote concerned the distinction elaborated in the notes to the report of Pordage v Cole , between dependent and independent covenants. In Dunlo
- Polenghi Bros v Dried Milk Co, Ltd (1904) 10 Com Cas 42 Polenghi Bros concerned a contract for the sale of dried milk powder by sample, where the delivery might be either c.i.f. London or f.o.b. Genoa. It provided that: “ Payment is to be made in cas
- The seller’s claim for the price seems to have been treated as standing or falling with its claim for a declaration, and s.49 was not mentioned either in argument or in the very short judgment. The se
- Kennedy J was not asked to decide, and did not purport to decide, anything about the meaning or effect of s.49(2) , and Polenghi Bros therefore does not assist either side in the present case. Benjami
- Workman Clark & Co, Ltd v Lloyd Brazileño [1908] 1 KB 968 The Court of Appeal dismissed an appeal against a decision of Walton J upholding a summary judgment granted by a Master (strictly, his order granting leave to sign judgment for the amount clai
- Order xiv , rule 1, required the plaintiff’s claim to have been for a “ debt or liquidated demand in money ” within what was then Order iii , rule 6. The ground of appeal was that, since no property h
- There was no issue before the Court of Appeal, therefore, as to the meaning of “ a day certain irrespective of delivery ”, and Workman Clark is no authority on that. In any event, the relevant instalm
- The ground of decision ( per Lord Alverstone CJ at 974-975, per Farwell LJ at 978, per Kennedy LJ at 979-981), was that whatever the rules had been concerning the old, distinct common law actions of d
- Farwell LJ, at 978-979, considered that “ any action falling under any of the eight common indebitatus counts, which is brought on an executed consideration for a fixed sum to be paid for such executi
- Benjamin , at 19-375, n.1686, says that there is doubt as to whether Workman Clark is any authority on the interpretation of s.49(2) because there are several reports of the case and, “ In the Law Rep
- It is doubtful nonetheless that Workman Clark decides anything about s.49(2) , but that is because it is arguable that what all three judges said about it is obiter . I do not need to take a final vie
- Stein Forbes & Co v County Tailoring Co (1916) 115 L.T. 215 That brings me to Stein Forbes , a decision of Atkin J (as he was then). Benjamin , at 19-379, n.1702, suggests that a difference in the sellers’ respective abilities readily to resell the g
- Stein Forbes was not about instalment prices, so I think it no surprise that Workman Clark is not mentioned, although Atkin J can be taken to have been familiar with it having been counsel for the suc
- Various defences raised by the defendant failed, leading Atkin J to conclude that it had broken the contract by not taking up the documents, and paying, for the Den of Glamis sheepskins, and then (at
- The first argument for the plaintiff was that it was entitled to the price although property had not passed on the ground that “ here was a sum certain payable at a fixed time and that, as the defenda
- Stein Forbes is, therefore, authority that a contract for the sale of goods for delivery c.i.f., payment “ cash against documents on arrival of the steamer ”, is not a contract falling within s.49(2)
- Although Stein Forbes concerned a c.i.f. sale, there is no basis for a different analysis of an f.o.b. sale where the price is payable against shipping documents through which the seller retains const
- Martin et al. v Hogan (1917) 24 CLR 234 Martin v Hogan is an unusual decision in the High Court of Australia. It is unusual because the Court sat as a constitution of six judges (Barton, Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ) and
- Colley v Overseas Exporters [1921] 3 KB 302 A quantity of leather belting was contracted to be sold f.o.b. Liverpool. The goods to be sold under the contract were not ascertained when the contract was concluded, but leather belting was prepared
- McCardie J gave judgment for the buyer, dismissing the claim for the price. At 306, he said that s.49(2) of the Act “ does not apply, as it apparently did in Workman, Clark & Co. v Lloyd Brazileño , w
- Muller Maclean & Co v Leslie & Anderson (1921) 9 Ll. L. Rep. 328 In Muller Maclean , there was a contract for the sale of steel padlocks, prompt shipment with payment cash against documents in London, the price being £90 4s 3d and described in the he
- The seller’s claim for the price failed ( ibid , at 330 lhc-331 lhc). The seller said that s.49(2) applied. Roche J dismissed that claim, following and applying Stein Forbes . He rejected a submission
- A.A. Nortier & Co v Wm. Maclean, Sons & Co (1921) 9 Ll. L. Rep. 192 It is not clear from the report of Nortier v Maclean that any claim for the price was made, as opposed to claims for damages. The case concerned two separate contracts between the sa
- Shell-Mex, Ltd v Elton Cop Dyeing Co, Ltd (1928) 34 Com Cas 39 That brings me to Shell-Mex , under which a contract for the sale of 1,000 tons of fuel oil, for delivery by instalments, gave the seller (by Clause 15): “ the right at any time to invoic
- It is not easy to see that Clause 15, the special payment clause, did not provide for a price payable ‘irrespective of delivery’ as much as, and on that point in the same way as, the clause in Dunlop
- However, Wright J concluded that any price invoiced under Clause 15 “ still remains the price as of goods sold and delivered ”, or was “ still the price payable under the contract, which includes the
- The real ground on which Wright J decided Shell-Mex was that Dunlop v Grote could be distinguished, and s.49(2) did not apply, because Clause 15 of the sale contract did not provide for a ‘day certain
- White and Carter (Councils) Ltd v McGregor [1962] AC 413 This well-known case concerns the circumstances in which a contracting party that can complete performance of its obligations without any input from its counterparty is entitled to do so, and c
- Tradax v Goldschmidt [1977] 2 Lloyd’s Rep 604 In this case, decided by Slynn J (as he was then), the buyer under a contract for the sale of White Syrian barley f.o.b. stowed trimmed Lattakia, payment “ Cash against documents on presentation ”, re
- That decision was upheld on an appeal by way of case stated under the Arbitration Act 1950 . The first question stated for the court was whether the seller was entitled to recover US$26,728.24 (or any
- Otis Vehicle Rentals Ltd [2002] EWCA Civ 1064
- The claimant had pleaded readiness and willingness to deliver the tractor units pursuant to the repurchase contract created by the exercise of its option, but by the time the case came to trial the cl
- There were two grounds for the Court of Appeal’s decision ( per Potter LJ at [14]-[16])
- Caterpillar (NI) Ltd [2013] EWCA Civ 1232 , [2014] 1 WLR 2365 In Caterpillar , s.49 of the Act was relevant because the defendant buyer claimed to set off against claims for unpaid invoices two larger claims it asserted against the claimant, and cont
- The claim for the price in Caterpillar , then, like the claim for the price in Tradax v Goldschmidt , supra , was not a claim for goods sold and delivered, nor for goods bargained and sold, but a clai
- For summary judgment purposes, the payment clause in Caterpillar was taken to have required payment on the twenty-fifth day of the fifth month after the month in which the invoice was dated, meaning t
- In the section of his judgment concluding that there could be no claim for the price outside s.49 of the Act (which forms part of the ratio in Caterpillar as to which the court was unanimous), Longmor
- I have laboured that slightly because it makes clear, I think, that Longmore LJ took it to be settled law that ‘irrespective of delivery’ in s.49(2) required the obligation to pay the price not to be
- On the orthodox view of English law recognised and otherwise adopted by Longmore LJ, the payment clause in FG Wilson’s terms and conditions did not provide for the price to be payable irrespective of
- The Res Cogitans , [2015] EWHC 2022 (Comm) , [2016] UKSC 23 , [2016] AC 1034 In The Res Cogitans , arbitrators decided that the bunker supply contract at issue was not a contract for the sale of goods to which s.49 applied. That decision was upheld b
- At first instance, Males J said (at [71]-[73]) that if s.49 had applied, he would have held that a price payable within a fixed period after delivery was a price payable “ on a day certain irrespectiv
- I respectfully disagree with the reasons Males J gave for his ‘doubly obiter ” view, to the extent that it concerned the meaning of ‘irrespective of delivery’
- In the Supreme Court, as I noted at paragraph 61 above, it was said, obiter , that Caterpillar should be overruled on whether a claim for the price under a sale contract may lie outside s.49 of the Ac
- In reasoning to the conclusion that, had it mattered, Caterpillar would have been overruled on the exclusivity of s.49 for claims to the price in sale of goods contracts, at [45], Lord Mance, JSC, ref
- Lord Mance continued ( ibid ) by mentioning Longmore LJ’s obiter dictum in Caterpillar to the effect that a price payable within 30 days of an invoice date would be a price payable on a ‘day certain’
- I do not find it easy to identify the meaning of s.49(2) that Lord Mance had in mind. The reference to s.49(2) possibly having a ‘main focus’ on cases where there has not been delivery might suggest a
- However, the sentence which follows (“ Section 49 does not focus … ”) might suggest a view that a claim for the price of goods delivered but not sold is within s.49(2) , if the price is payable on a ‘
- Garmin Australasia Pty Ltd v B & K Holdings (Qld) Pty Ltd [2018] QCA 353 By contractual arrangements enabling the defendant to operate as a dealer in Garmin products, the defendant was obliged to pay for products ordered 45 days from invoice, the pla
- The New South Wales Sale of Goods Act 1923 applied, s.51(1)-(2) of which (quoted at [20]) are identical to s.49(1) -(2) of the Act s of 1893 and 1979. On the appeal, it was held that s.51(2) did not j
- Mitsubishi Corp RTM International Pte Ltd v Kyen Resources Pte Ltd [2019] SGHCR 6 This is a decision of Asst. Registrar Tan Xue Yang (Elton) (‘Tan AR’) in the High Court of Singapore. It concerned a contract for the sale of aluminium ingots by the pl
- The seller sought judgment on admissions for the total unpaid price amounts, arguing that the buyer’s pleaded admissions that it entered into the contract, that the goods were delivered to and receive
- Conclusions