Lloyd's Maritime and Commercial Law Quarterly
THE DEATH OF DEEMED FULFILMENT
Anthony Kennedy*
Helen Morton†
King Crude v Ridgebury
Introduction
In King Crude Carriers SA v Ridgebury November LCC, contracts for the sale on the Norwegian Saleform 2012 of three second-hand tankers obliged the buyers to lodge a deposit of 10 per cent of the purchase price with the sellers’ escrow holders. Both sellers and buyers promised to provide the escrow holders with the necessary documentation to open the account but, in fact, the buyers failed to do so: the account was never opened and the deposit never paid. The sellers gave notice purporting to terminate the contract. It just so happened that the market price of the tankers upon termination was higher than the purchase price, so that only nominal damages would be recoverable. In the circumstances, are the sellers able to argue that, because the buyers wrongfully prevented the condition of the debt’s accrual being satisfied, the condition is deemed to have been fulfilled, allowing the sellers to recover the deposits in debt?
The Court of Appeal1 had said “yes”, finding the origin for its answer in the speech of Lord Watson in the Scottish case of Mackay v Dick & Stephenson.2 Yet, the Supreme Court,3 allowing the buyers’ appeal, has now said “no”. In so doing, it has finally confirmed that there is no place in English law for “a principle (or rule or doctrine) of law that, where a party wrongfully prevents the fulfilment of a condition precedent … that condition is treated as being fulfilled”.4 Howsoever one responds to the court’s reasoning and the result in the case, the certainty which the Supreme Court’s judgment brings in this area is beneficial.
Rejection of the principle (or rule or doctrine) of deemed fulfilment
Having reviewed several of the authorities which had already touched on the point, the Supreme Court offered six reasons why, in its view, the doctrine of deemed fulfilment did not form part of English law.
* Lecturer in Commercial Dispute Resolution at BPP Law School; barrister.
† Barrister, Essex Court Chambers.
1. [2024] EWCA Civ 719; [2024] 2 Lloyd’s Rep 140 (hereafter, “King Crude CA”). The present authors agreed with the Court of Appeal’s decision, if not all aspects of its reasoning: [2025] LMCLQ 24. See also J English (2025) 141 LQR 48; J Chu (2025) 45 Legal Studies 463; and R Stevens [2025] LMCLQ 244.
2. (1881) 6 App Cas 251 (hereafter, “Mackay”).
3. [2025] UKSC 39; [2025] 2 Lloyd’s Rep 560; [2025] 3 WLR 707 (hereafter, “King Crude SC”).
4. King Crude SC, [1]. Lords Hamblen and Burrows, giving the judgment of the Supreme Court, reflected that the “status of the principle … has long been a matter of debate”.
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