В публикации рассматривается решение, принятое арбитражем ГАФТА по делу Soufflet Negoce SA v Fedcominvest Europe SARL  EWHC 2405 (Comm). Спор возник из исполнения контракта по форме ГАФТА № 64 на поставку французского кормового ячменя на условиях ФОБ. Решение арбитража прошло проверку и нашло свое подтверждение в английском суде. Это решение говорит о том, что необходимо строго соблюдать формулировки, закрепленные в договоре.
French feed barley was sold on FOB terms on a GAFTA 64 form with the following provisions:
“6. PERIOD OF DELIVERY
In case of re-sales all notices shall be passed on without delay, where possible, by telephone and confirmed on the same day in accordance with the notices clause.
8. EXTENSION OF DELIVERY
The contract period of delivery shall be extended by an additional period of not more than 21 consecutive days, provided that buyers serve notice claiming extension not later than the next business day following the last day of the delivery period …
All notices required to be served on the parties pursuant to this contract shall be communicated rapidly in legible form. Methods of rapid communication for the purposes of this clause are defined and mutually recognized as:- either telex, or letter if delivered by hand on the date of writing, or telefax, or email, or other electronic means, always subject to the proviso that if receipt of any notice is contested, the burden of proof of transmission shall be on the sender who shall, in the case of a dispute, establish, to the satisfaction of the arbitrator(s) or board of appeal appointed pursuant to the arbitration clause, that the notice was actually transmitted to the addressee. In case of resales/ repurchases all notices shall be served without delay by sellers on their respective buyers or vice-versa, and any notice received after 16h00 on a business day shall be deemed to have been received on the business day following. A notice to the brokers or agent shall be deemed a notice under this contract”. (Emphasis added).
Buyers’ nominated vessel was delayed and they tendered a notice claiming an extension at 17h09 (ie after 16h00) on the 21st consecutive day pursuant to clause 8 referred to above.
Sellers relied on the deeming provision in clause 19, claiming that buyers were out of time and refused to deliver.
Buyers claimed damages.
The GAFTA Appeal Board found that the deeming provision applied only to resales and repurchases and that the buyers had until midnight of the 21st day to serve their notice of extension in terms of clause 8. Sellers were in breach and buyers were entitled to damages.
The Appeal Board’s finding was confirmed by Eder J.
He accepted an argument that the natural meaning of the language was that the deeming provision applied only to resales and repurchases: the provision was placed in the same sentence as that referring to resales and repurchases and not in a position, and with the syntax, which would indicate that the provision was intended to refer to the different possibilities mentioned in the paragraphs dealing with notice.
Counsel for the buyers argued in vain that business common sense required the deeming provision to apply to all types of notice.
In an ordinary business day it is difficult to make effective decisions after 4pm. From this point of view it would make sense that a notification, regardless of the event, received after 4pm, should be deemed to have been received the following business day.
On the other hand, the language does support the prevailing view.
In the cases where business common sense has prevailed over the natural meaning of contractual provisions, the financial motivation has been a lot stronger e.g. Chartbrook v Persimmon Homes (casebook 432) and Re Sigma Finance Corp (casebook 434).