“A binding contract for the sale or participation by the Seller to the Buyer of the Purchased Asset shall, unless otherwise specified in the Agreed Terms, come into effect between the Buyer and the Seller upon oral agreement of the terms on the Trade Date and shall be documented and completed in accordance with [specified conditions]. The Seller and the Buyer acknowledge that events occurring subsequent to the Trade Date shall not relieve the parties of their obligations under the Confirmation”
“Let’s close this as soon as possible, you are a very important client for me so tell me from the price that I have shown you tell me what we can do”
“… he said, what about the settlement window? And I said: Paolo, I don’t know, because this is lawyer which they need to agree on the documentation. And he was: Will be roughly August, stuff like that? I said, I was like I’d never give him a firm commitment on a settlement window”
“If … a subsale is within the contemplation of the parties, I think that damages must be assessed by reference to it, whether the plaintiff likes it or not”, Biggin v Permalite, loc cit, at p.436 (and see Rodocanachi v Milburn,(1886) 18 QBD 67 at p.78, Williams Bros v Ed. T Agius Ltd.,[1914] AC 510 at p.522 and Czernikow (C) v Koufos Ltd.,[1969] 1 AC 350 at p.416E-F). However it does not suffice to bring a sub-sale within the contemplation of the parties that they were both aware that the buyers were traders who dealt in the assets in question and were likely to sell them. This is stated by Devlin J in Kwei Tek Chao v British Traders and Shippers Ltd.,[1954] 2 QB 459 at p.489: “It is perfectly true that the defendants knew that the plaintiffs were merchants who had bought for re-sale, but everyone who sells to a merchant knows that he bought for re-sale, and it does not, as I understand it, make any different to the ordinary measure of damage where there is a market. What is contemplated is that the merchant buys for re-sale, but if the goods are not delivered to him he will go out into the market and buy similar goods and honour his contract in that way. If the market has fallen, he has suffered no damage; if the market has risen the measure of damage is the difference in the market price. There are of course cases where that prima facie measure of damage is not applicable because something different is contemplated. If for example a man sells goods of a special manufacture and it is know that they are to be re-sold, it must also be known that they cannot be bought in the market, being specially manufactured by the seller. In such a case the loss of profit becomes the measure of damage. Similarly, it may very well be that in the case of string contracts, if the seller knows that the merchant is not buying merely for re-sale generally but on a string contract where he will re-sell those specific goods and where he could only honour his contract by delivering those goods and no others, the measure of loss or profit on the re-sale is the right measure.”
“The general principle for the assessment of damages is compensatory, i.e., that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed. Where the contract is one of sale, this principle normally leads to assessment of damages as at the date of the breach – a principle recognised and embodied insection 51 of the Sale of Goods Act 1893 . But this is not an absolute rule: if to follow it would give rise to injustice, the court has power to fix such other date as may be appropriate in the circumstances. In cases where a breach of a contract for sale has occurred, and the innocent party reasonably continues to try to have the contract completed, it would to me appear more logical and just rather than tie him to the date of the original breach, to assess damages as at the date when (otherwise than by his default) the contract is lost. Support for this approach is to be found in the cases. In Ogle v Earl Vane, (1867) L.R. 2 Q.B.275; L.R. 3 Q.B. 272 the date was fixed by reference to the time when the innocent party, acting reasonably, went into the market; in Hickman v Haynes, (1875) L.R. 10 C.P. 598 at a reasonable time after the last request of the defendants (buyers) to withhold delivery. In Radford v De Froberville,[1977] 1 W.L.R. 1262, where the defendant had covenanted to build a wall, damages were held measurable as at the date of the hearing rather than at the date of the defendant’s breach, unless the plaintiff ought reasonably to have mitigated the breach at an earlier date.”
“… at what date could the plaintiff reasonably have been expected to mitigate the damages by seeking an alternative to the performance of the contractual obligation? In contracts for the sale of goods, for instance, where there is an available market the date of non-delivery is generally the appropriate date because it is open to the plaintiff by going into the market immediately. ”
“If the plaintiff has a profitable contract to sell goods, and there is a market, he can supply himself with goods by purchasing in the market; and he is then left without the goods he should have received under the original contract and has lost their market value. But suppose his sub-contract is at a price below instead of above the market price, so that, if he delivers goods under the sub-contract he loses. Can his damages be limited by the amount he would have received on the sub-contract? On the above reasoning it would seem not. He could supply the sub-contract by buying in the market, and then he should have goods delivered to him of a certain market value, which he has lost because they were not delivered.”