Jurisdiction(s):
United Kingdom

Unpaid price under s49(2) SGA 1979: English Commercial Court holds CAD/FOB terms mean payment not ‘irrespective of delivery’ or on ‘a day certain’, barring sellers’ price actions

Published on: 17 September 2025

Published by a LexisNexis Arbitration expert

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Article summary

Trans Trade RK SA v State Food and Grain Corporation of Ukraine [2025] EWHC 1803 (Comm)

The Commercial Court overturned three GAFTA Appeal Awards and affirmed the correct construction of section 49(2) of the Sale of Goods Act 1979. In GAFTA arbitrations, the Sellers pursued the contract price for goods left unpaid. The Buyers resisted on two bases, both of which failed before GAFTA, namely:

that the Contracts had been frustrated; and
that the Sellers could not sue for the unpaid price.

The Buyers then appealed the awards to the Commercial Court under section 69 of the Arbitration Act 1996. A central provision common to all three Contracts was clause 6.1, which stated that the Buyer must pay, by bank transfer on a CAD (cash against documents) basis, 100% of the value of the portion of the Goods delivered, in accordance with the Seller’s commercial invoice, by 1 September 2021 inclusive, again against scanned copies of the cargo documents specified in clause 6.2. Clause 6.2 listed the documents to be produced by the Sellers for payment, and, critically, that list included bills of lading...

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