Gesner Investments Ltd v Bombardier Inc [2011] EWCA Civ 1118 (11 October 2011)

Gesner Investments Ltd v Bombardier Inc [2011] EWCA Civ 1118 (11 October 2011)

The buyer's right to terminate after 90 days of non-excusable delay under Article 8.4 must be exercised pursuant to Article 9.2, requiring written notice specifying the breach and a further 10-day period for the seller to cure the default. Article 8.4 does not provide a free-standing right to terminate without following Article 9.2's procedure. The contract's language, though imperfect, is sufficiently clear and must be given effect even if it appears generous to the seller.

Citation
[2011] EWCA Civ 1118
Parties
Claimant / Appellant: Gesner Investments Limited; Defendant / Respondent: Bombardier Inc
Jurisdiction
England and Wales
Judgment Date
11 October 2011
Procedural Posture
Civil Appeal / Appeal From Summary Judgment in the Commercial Court (queen's Bench Division)
Outcome
Appeal dismissed
Legal Topics
Contract Interpretation, Termination Clauses, Liquidated Damages, Aircraft Purchase Agreements
Contract Law Commercial Law Contract Interpretation Termination Clauses Liquidated Damages Aircraft Purchase Agreements

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Parties

Gesner Investments Limited

Claimant / Appellant

Bombardier Inc

Defendant / Respondent

Procedural Posture

Civil Appeal / Appeal From Summary Judgment in the Commercial Court (queen's Bench Division)

Legal Issues

  1. 1 Whether, after 90 days of non-excusable delay in tendering the aircraft, the buyer could terminate the contract forthwith under clause 8.4 or only by serving a written notice under clause 9.2 and granting the seller an opportunity to remedy the breach.

Ratio Decidendi

The buyer's right to terminate after 90 days of non-excusable delay under Article 8.4 must be exercised pursuant to Article 9.2, requiring written notice specifying the breach and a further 10-day period for the seller to cure the default. Article 8.4 does not provide a free-standing right to terminate without following Article 9.2's procedure. The contract's language, though imperfect, is sufficiently clear and must be given effect even if it appears generous to the seller.

Court Disposition

Appeal dismissed

Orders

  • The appeal by Gesner Investments Limited is dismissed.