Export ban: court construes FOSFA 201 prohibition and default clauses
This briefing from Ince & Co focuses on the case of Novasen S.A. v Alimenta S.A.  EWHC 345 (Comm), where the court construed FOSFA 201 prohibition and default clauses. The parties entered into a contract for the sale of Senegalese crude groundnut oil in bulk. Before the goods were shipped, a Senegalese government prohibition on export that applied to this commodity was declared. This stayed in force for just over two months.
The Sellers immediately notified the Buyers of the prohibition in accordance with the FOSFA 201 Prohibition clause incorporated into the sale contract, the result of which was that the shipment period was automatically extended by 30 days. At the same time however, the Sellers also purported to terminate the sale contract on the grounds of the prohibition. The Buyers declared this to be an anticipatory repudiatory breach of contract which they accepted as bringing the contract to an end and sought damages. The Sellers argued that the Buyers had suffered no loss because, pursuant to the Prohibition clause, the contract would, in any event, have come to an end without any liability on the Sellers’ part after the 30 day extension had expired. The FOSFA Board of Appeal disagreed and held that, by terminating the contract prematurely, the Sellers had deprived themselves of the right to rely on the potential automatic cancellation of the contract without any liability on their part, under the provisions of the Prohibition Clause. The Board awarded the Buyers default damages at the difference between the contract price and the market price as at the date of the termination. The Commercial Court has now allowed the Sellers’ appeal, finding that the Default clause in the contract placed a ceiling on the recoverable damages and conferred no right to recover damages if no loss had been suffered…
If you are registered and logged in to the site, click on the link below to read the rest of the Ince & Co briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from Ince & Co
News from The Lawyer
Briefings from Ince & Co
Affected parties must think about who will be the ’operator’ for the purposes of the new European regulations.
The commercial understanding of the phrases ‘as is’ or ‘as is where is’ has always been that a buyer must take a yacht in the condition in which she is found at the time defined in the contract.