CL-2024-000457, 000458, 000459 - [2025] EWHC 1803 (Comm)

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 claim for goods delivered but not sold, because property was only to pass upon payment and the buyer had not paid (leaving aside the set-off argument in Caterpillar, if it might have gone that far). In such a case, the failure to pay the price prima facie does not cause the seller loss equal to the amount of the price, but loss equal to any difference between the price not paid and a lower value at the time of the default of goods that the seller, in consequence, still owns. If there is no failure to take reasonable steps to mitigate, yet the seller is deprived of its goods or their value, the seller ought to have its remedy for that loss outside the sale contract and/or the correct measure of damages for the buyer’s breach of the sale contract might be the full unpaid contract price after all. There is therefore no injustice to the seller if it cannot maintain an action for the price in respect of goods delivered but not sold where the contract falls outside s.49(2). There is therefore, in turn, no need to construe s.49(2) otherwise than in accordance with its plain language so as to increase the situations in which an action for the price will be available in respect of goods delivered but not sold.