Lloyd's Maritime and Commercial Law Quarterly

Edited by Professor Francis D Rose

Document

WHAT IS “A DAY CERTAIN IRRESPECTIVE OF DELIVERY” UNDER THE SALE OF GOODS ACT 1979, S.49(2)?

Jonas Atmaz Al-Sibaie*

CE Energy v Bashar

Section 49 of the Sale of Goods Act 1979 (“SGA 1979”)1 provides that a seller can bring an action for the price in two circumstances: (1) where the property in the goods has passed to the buyer; and (2) where the price is payable on a day certain irrespective of delivery and that day has passed.2 If the seller does not fall within either of these provisions, they cannot bring an action for the price.3 CE Energy DMCC v Bashar 4 (“Bashar”) is the latest in a line of cases that have construed the phrase “day certain irrespective of delivery” under s.49(2) liberally.5 On that construction, any obligation to pay the price at an ascertainable date (even if not certain to occur) and which is not conditional on delivery falls within the scope of s.49(2). While this approach has some pedigree, it is not without difficulty.

Facts

The claimant, CE Energy DMCC (“CEE”), brought claims against the first defendant, Mr Bashar, based on a guarantee, and the second defendant, Ultimate OIL & GAS DMCC (“UOG”), based on a contract of sale. This note is concerned only with the legal issues relating to CEE’s claim against UOG and does not deal with CEE’s guarantee claim against Mr Bashar. It suffices to say that summary judgment was given in respect of the guarantee claim.

Relevantly to CEE’s claim against UOG, CEE entered into a contract for the sale of 15,000 metric tonnes of gasoil to UOG, delivery ex ship offshore Lome, Togo, with further transhipment to Lagos, Nigeria. Payment was to be made “45 calendar days from [first notice of readiness given on the arrival of a daughter vessel at] Lagos”6 to unload. CEE reserved property in the goods until payment. The daughter vessel served notice of readiness to unload at Lagos on 2 February 2024, so that payment was due on 19 March 2024. UOG failed to pay the entirety of the price. Consequently, CEE brought proceedings against UOG for the price and applied for summary judgment.

As already mentioned, the seller can bring an action for the price only if they can bring themselves within one of the provisions of SGA 1979, s.49. CEE could not bring itself

* Shaw Foundation Junior Research Fellow in Law, Jesus College, University of Oxford. Many thanks to Jordan English, Matthew Frey and the anonymous referee for comments on earlier drafts.

1. SGA 1979 consolidated the law contained in the codifying Sale of Goods Act 1893 (“SGA 1893”) as subsequently amended.

2. It is a condition of both circumstances that the buyer must have wrongfully neglected or refused to pay.

3. Caterpillar (NI) Ltd (formerly known as FG Wilson (Engineering) Ltd) v John Holt & Co (Liverpool) Ltd [2013] EWCA Civ 1232; [2014] Lloyd's Rep 180; [2014] 1 WLR 2365 (hereafter “Caterpillar”). Contrast PST Energy 7 Shipping LLC and Another v OW Bunker Malta Ltd and Another (The Res Cogitans) [2016] UKSC 23; [2016] 1 Lloyd's Rep 589; [2016] AC 1034 (hereafter “The Res Cogitans”), [53].

4. [2025] EWHC 297 (Comm).

5. Since the finalisation of this note, Andrew Baker J handed down judgment in Trans Trade RK SA v State Food and Grain Corp of Ukraine [2025] EWHC 1803 (Comm), dealing with the meaning of “irrespective of delivery” under SGA 1979, s.49(2). A note on that case will appear in the next issue of this Quarterly.