Remedies

No need to waive goodbye to your rights

Rhona Egerton

A party did not waive its right to rely on a “performance relief” provision by temporarily continuing to perform by alternative means: Delta Petroleum v BVI Electricity Corp. BVI Electricity contracted to buy fuel from Delta. The agreement contained a “performance relief” provision, allowing Delta to claim relief from further performance should the refinery from Read More

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Testing the limits of the reflective loss rule post-Marex

Tomasz Hara

In BIG, Burgess and others v Smith and others, the court applied the reflective loss rule, as recently restated by the Supreme Court in Marex: in circumstances where a shareholder and their company have concurrent claims in relation to the same loss, the shareholder’s loss is not recognised in law as having an existence distinct Read More

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Money down the drain? How to avoid damages being sunk by remoteness.

Richard Farnhill

The fact that your contract has been breached and the breach has caused you losses is not enough for you to make a recovery. Remoteness is the often overlooked third leg of the damages stool. In AG of the Virgin Islands v Central Water Associates the Privy Council gave more guidance on how the rules Read More

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Fine words butter no parsnips: remedying a material breach

Celine O'Donovan

In Bains v Arunvill, the Court of Appeal held that non-performance amounting to a material breach of contract could not be remedied by a promise to perform. Non-performance could only be remedied by commencing actual performance. Arunvill had hired Bains as a consultant, with the specific services to be provided largely left at Bains’ discretion. Read More

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Sheffield United: performance required on and off the pitch

David Rowlands

In UTB v Sheffield United, the court resolved a dispute between the two shareholders of a company operating a football club. It ordered specific performance so that one shareholder, SUL, had to sell its 50% shareholding to the other, UTB, pursuant to the exercise of a call notice. The shareholders had entered into an investment Read More

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Peru-sing the interpretation of a mistaken oral agreement

Bethany Gregory

In Lehman Brothers v Exotix Partners, the parties to an oral trade in Peruvian government global depository notes were both mistaken as to their value, resulting in the buyer receiving a windfall which it was effectively ordered to repay. Lehman Brothers and Exotix, a securities broker, entered into a trade by telephone on a recorded Read More

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Innominate or condition? Check the consequences or you’ll wreck termination

Senem Cilingiroglu

In Ark Shipping v Silverburn Shipping, the Court of Appeal had to deal with the law school classic: when is a term a condition, the breach of which entitles the innocent party to terminate, and when an innominate term, where the ability to terminate depends on the gravity of its breach? While the case was Read More

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Damages under SPA capable of being more than purchase price

George Wilders

In 116 Cardamon v MacAlister, the court ordered the full purchase price be paid by way of damages for breach of accounting warranties in a share purchase agreement, having found that the value of a company “as warranted” was greater than the purchase price. Cardamon, an investment company, purchased all the shares in Motorplus, an Read More

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A (small) matter of construction: whether a breach was material

Deekshitha Swarna

In Mears v Costplan, the Court of Appeal looked at the question of material breach. Pickstock contracted with Plymouth to build two blocks of student accommodation. Mears entered into an agreement for lease of the property with Plymouth. The agreement for lease prohibited Plymouth from making any variations to the building that “materially affect the Read More

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Breach of warranty: claim for hypothetical indemnity? Don’t bank on it.

Flo Wang

In Oversea-China Banking Corporation v ING, the court held that damages based on a hypothetical indemnity were not recoverable for breach of warranty of quality on a share sale. OCBC entered into a sale and purchase agreement with ING to purchase shares in ING Asia. Subsequently, ING Asia paid USD 14.5m to Lehman Brothers to Read More

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