[2009] EWHC 1088 (Comm)

[2009] EWHC 1088 (Comm)

In the absence of any inconsistent term, an FOB contract governed by English law contains an implied term under s.14(2) Sale of Goods Act 1979 and at common law that the goods must be of satisfactory quality and, if specified, remain within specification for a reasonable time after delivery. Clause 18, which excludes warranties but not conditions, does not preclude these implied terms.

Parties
Claimant: KG Bominflot Bunkergesellschaft Für Mineralöle mbh & Co KG; Defendant: Petroplus Marketing AG
Jurisdiction
England and Wales
Judgment Date
22 May 2009
Procedural Posture
Commercial Contract Dispute / Trial of Preliminary Issues
Outcome
Preliminary issues answered: implied term exists under s.14(2) and at common law; s.14(3) term not implied; seller's obligations not limited to shipment; clause 18 does not exclude implied terms.
Legal Topics
Implied Terms, Satisfactory Quality, Fitness for Purpose, Contractual Exclusion Clauses, FOB Contracts
Commercial Law Sale of Goods Implied Terms Satisfactory Quality Fitness for Purpose Contractual Exclusion Clauses FOB Contracts

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Parties

KG Bominflot Bunkergesellschaft Für Mineralöle mbh & Co KG

Claimant

Petroplus Marketing AG

Defendant

Procedural Posture

Commercial Contract Dispute / Trial of Preliminary Issues

Legal Issues

  1. 1 Whether there is an implied term under s.14(2) Sale of Goods Act 1979 and/or at common law that goods delivered FOB must remain of satisfactory quality and/or in accordance with specification for a reasonable time after delivery
  2. 2 Whether s.14(3) Sale of Goods Act 1979 implies a term that goods must remain within specification for a reasonable time after delivery
  3. 3 Whether the seller's obligations are limited to compliance with specification at shipment FOB Antwerp

Ratio Decidendi

In the absence of any inconsistent term, an FOB contract governed by English law contains an implied term under s.14(2) Sale of Goods Act 1979 and at common law that the goods must be of satisfactory quality and, if specified, remain within specification for a reasonable time after delivery. Clause 18, which excludes warranties but not conditions, does not preclude these implied terms.

Court Disposition

Preliminary issues answered: implied term exists under s.14(2) and at common law; s.14(3) term not implied; seller's obligations not limited to shipment; clause 18 does not exclude implied terms.

Orders

  • Implied term under s.14(2) Sale of Goods Act 1979 and at common law that gasoil must be of satisfactory quality and remain within specification for a reasonable time after delivery
  • Clause 18 does not preclude implication of these terms