Jurisdiction(s):
United Kingdom

UKSC in Bunge v Nidera: Golden Victory compensatory principle applies to anticipatory breach in single sales; GAFTA default clause not complete code; subsequent events relevant; nominal damages awarded

Published on: 02 July 2015

Published by a LexisNexis Dispute Resolution expert

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Article summary

Practical implications The judgment:

affirms the primacy of the compensatory measure of damages for breach, as articulated in The Golden Victory, and provides a clear treatment of the particular questions that arise when evaluating damages for anticipatory breach (renunciation)
clarifies that the principle identified in The Golden Victory is not restricted to instalment contracts (contrary to what is sometimes suggested) but applies equally to one-off sale contracts
sets out the approach to interpreting damages clauses. The dicta in this judgment therefore indicate that, if parties intend to exclude the common law principles for assessing damages, their contract draftsmen must draft accordingly, making it expressly plain within the damages clause that the parties have considered the full spectrum of damages issues and intend to displace the common law in every respect
also noteworthy is Lord Toulson’s particular focus on the seller’s offer—made after its renunciation had been accepted—to conclude a substitute contract on the same terms, and whether this offer, which the buyer did not accept, thereby extinguished any alleged loss...

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