Rix J tackled an issue of this kind at the end of The Liepaya [1999] 1 Lloyd's Rep 649 in the context of early redelivery under a time charter and a charterer's claim that the owners should have mitigated by making a new contract with them (Rix J referred to "only a repudiatory breach" but surely "anticipatory" breach would have been better?):

"...the extension proposal was made and withdrawn (after failure to agree) on Dec. 9 itself, not only before redelivery, but also even before the one day notice of redelivery. That one day notice contained a different proposal “To assist Owners to mitigate”, namely the voyage charter proposal. In my judgment, therefore, the extension proposal came before breach and before any obligation to mitigate arose. Even if the original breach in the case of a redelivery without adequate notice of redelivery were the failure to give the stipulated notice or notices, so that the redelivery on Dec. 10 will have meant, albeit ex post facto, that the charterers will have been in breach 15 days earlier for failing to give a 15 day notice (cf. The Niirzuru, [1996] 2 Lloyd’s Rep. 66 at p. 73), that does not mean that there can have been any duty to mitigate until at least the time when the owners knew that there would be uncontractual redelivery, and the earliest that the owners knew that was by reference to the charterers’ message of Dec. 9, and that had opened by withdrawing the extension proposal. In any event, I think that strictly speaking the charterers’ uncontractual one day notice of Dec. 9 was not an actual breach but at that time only a repudiatory breach. If the charterers had relented and given proper notices, any actual breach would have been avoided. It was only when the redelivery was effected on Dec. 10 that there was any actual breach. In my view, therefore, the extension proposal is irrelevant."

James Shirley

Stone Chambers
4 Field Court
Gray's Inn
London WC1R 5EF

www.stonechambers.com

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On 18 Oct 2012, at 17:37, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:

> It all depends when the breach occurs.
>
> So, Adam states
>
> "The choice whether to affirm or
> terminate occurs after (upon) the breach and the duty to mitigate has
> arisen."
>
> I don't think it does because without the acceptance of the repudiation there is no breach at all. It is writ in water. That is why a repudiation can be withdrawn. If it were itself a breach without more it could not be.
>
> As to the cases
>
> Asamera v Sea Oil did not concern a repudiation, but an actual breach
>
> Habton v Nimmo concerned a breach of warranty of authority, not repudiation. And so there was a duty to mitigate from the moment of the wrong.
>
> Dunno about the Saskatchewan one
>
> Steve asks
>
>  "If you fail to deliver goods to me and, without having in any way indicated that I am no longer expecting you to perform, I later sue you, I will not be given specific performance (unless the goods are unique) and my damages will be calculated assessed on the basis of the market price as of the contractual date of delivery. Yet if I did not terminate, then according to the orthodox understanding of the relationship between termination and mitigation (as set out by Rob and Andrew), should not damages be calculated as of the date of judgment?"
>
>
> The plaintiff is entitled to damages reflecting his right to performance, assessed at the time of breach (here time of non-delivery). Consequential loss is irrelevant to this head of damages. If he wishes to argue that he has loss consequent upon the breach of the duty to deliver on a particular day over and above the difference in value this is recoverable (although usually difficult to show where there is a ready market for the goods that he can avail himself of, ie he either can or should mitigate). Consequential losses are assessed at time of trial. Termination does not come into it.
>
> I tried to explain the law on timing of damages in sale cases (amongst other things) in a book chapter edited by one J Neyers. Available to be read here I see
>
>
>
>
> http://denning.law.ox.ac.uk/news/events_files/A_Golden_Victory_or_Not.pdf

 

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