Sale of goods law can at times be a bit esoteric. When it is, the difficulty can lie in making sure it accords with common sense as practised by businesspeople. Martin Spencer J managed just that today in dismissing what is best described as a pettifogging defence which counsel (absolutely properly, given his duty to his client) had raised to what looked like a straightforward claim for payment for building materials.
In Readie Construction v Geo Quarries [2021] EWHC 3030 (QB) Geo agreed to supply something over £600,000-worth of aggregate to builders Readie for a warehouse project in Bedfordshire. After most of the deliveries had been made and paid for, it turned out that something seemed to have gone badly wrong. Following heavy rain, the aggregate that had been used to form the base of the warehouse had melted into some sort of unprepossessing slush. Readie told Geo to stop deliveries and refused to accept or pay for the final batch, saying that Geo must have supplied the wrong substance. Geo invoiced Readie for the balance of the price and sought summary judgment, invoking the following Clause 4.1 from the sale contract:
“The Customer shall make payment in full without any deduction or withholding whatsoever on any account by the end of the calendar month following the month in which the relevant invoice is dated. If payment is not received in full when due the Customer shall pay interest on the unpaid amount at a rate per annum which is 8% and above Bank of England base lending rate from time to time and the Customer shall pay to, or reimburse the Company on demand, on a full indemnity basis, all costs and liabilities incurred by the Company in relation to the suing for, or recovering, any sums due including, without limitation the costs of any proceedings in relation to a contract between the Company and a Customer incurred in or suffered by any default or delay by the Customer in performing any of its obligations. Payment shall only be made to the bank account nominated in writing by the Company on the invoice. Time of payment is of the essence.” (Our emphasis)
Straightforward, you might have thought? Not necessarily. Readie’s first argument was that the clause didn’t protect a seller who delivered the wrong goods, rather than goods that were correct but bad: after all, if it did, they said, it would mean that a seller who delivered nothing at all, or something obviously irrelevant such as sand, would still have the right to be paid after submitting its invoice. This point Martin Spencer J adroitly — and we on the blog think rightly — got rid of by saying that the right to be paid would be implicitly conditional on a bona fide purported delivery.
The next argument was that Clause 4.1 ousted counterclaims and set-offs but not Readie’s would-be right to abatement of the price. There was authority that some clauses would indeed be interpreted that way. But his Lordship remained unconvinced that this one was of that type: it was comprehensive in its terms, and there was no reason not to interpret it in an accordingly wide way, as requiring the buyer to pay in full, no questions asked, and argue the toss later. This again seems, if we may say so, highly sensible. Hardly any businesspeople know the difference between a set-off and a right to abatement; indeed, one suspects the proportion of practising lawyers is also embarrassingly low. However attractive it might seem to a law professor with time on their hands, one should not lightly assume a clause is meant to invoke a technical legal distinction which lawyers and laypeople alike are largely unfamiliar with.
Lastly, it being accepted that because of a retention of title clause s.49(1) of the Sale of Goods Act 1979 did not give Geo a right to the price on the basis that property had passed, Readie argued that s.49(2), allowing a claim for payment on a day certain irrespective of delivery, did not apply either. The right to payment, they said, was dependent on delivery, or at least purported delivery: how could payment then be due “irrespective of delivery”? The answer, again we suggest correct, was that “irrespective of delivery” means simply “not fixed at the time of delivery”, thus ousting the presumption of cash on delivery reflected in s.28.
To this latter question there might have been an easier answer, save for a curious concession on Geo’s part that they could not succeed in a claim for the price unless they were within either s.49(1) or s.49(2). Since The Res Cogitans [2016] AC 1034 it has been clear that freedom of contract exists as to the time and circumstances when payment becomes due, whether or not either limb of s.49 is satisfied. It must have been at least arguable that Clause 4.1 simply provided its own solution and needed to be applied in its own terms without any reference to s.49 at all. Another note, perhaps, for your for the file on the minutiae of bringing claims for summary judgment for goods supplied.
