NATIXIS SA V MAREX FINANCIAL

[2019] EWHC 2549 (Comm), Queen’s Bench Division, Commercial Court, Mr Justice Bryan, 2 October 2019

Sale of goods – Obligation on seller to pass good title – Common mistake and allocation of risk – Whether duty of care owed by warehouse in authenticating forged receipts – Duty of care to seller – Duty of care to buyer – Nature of bailment – Contributory negligence – Mitigation – Validity of exclusion clause – Unfair Contract Terms Act 1977

By five spot purchase contracts between November 2016 and January 2017, Marex agreed to sell, and Natixis agreed to buy, nickel stored at Access World warehouses in Korea and Malaysia. Marex was obliged to deliver warehouse receipts from Access World to Natixis. Sixteen such receipts were delivered. It then became apparent that the receipts were forged. As a result, Marex never had, and Natixis never acquired, title to any of the nickel. Natixis claimed damages from Marex, and Marex sought damages from Access World.