Divining the meaning of “on a day certain irrespective of delivery” under the Sale of Goods Act 1979, s.49

This post was contributed by Professor James Devenney, Module Convenor for Commercial law.

The Sale of Goods Act 1979, s.49 provides that a seller, under a sale of goods contract, can bring an action for the price in two situations:

• where property in the goods has passed to the buyer and the buyer wrongfully refuses to pay for them in accordance with the terms of the contract (s.49(1)); or
• where the price is payable “…on a day certain irrespective of delivery…” and the buyer wrongfully refuses to pay for the goods (s.49(2)).

This provision is intriguing for a number of reasons, including whether or not it is a complete statement of when a seller can bring an action for the price (see PST Energy 7 Shipping LLC Product Shipping & Trading SA v OW Bunker Malta Ltd [2016] UKSC 23 for a view that it is only a partial codification of the circumstances where a seller can bring an action for the price).  Here, we are concerned with the phrase “…on a day certain irrespective of delivery…”  This clearly covers the situation where the price is payable on a fixed date, for example, 1^st June 2025.  What if the price is payable not on a fixed date but on an ascertainable date such as the date of the next full moon or the completion of an action by the other party?

Workman Clark v Lloyd Brazileno (1916) 86 LJ KB 448 provides some support for the view that an ascertainable date may be sufficient under s.49(2).  In that case, which involved the building of a ship, the price was (as is common in this context) payable in instalments at different identified stages of construction.  In that case it was assumed that, although the date of payment was not fixed in advance, it was sufficient that the date would be ascertainable.  On the other hand, it sometimes stated that the act which fixes the date cannot be the act of delivery (as s.49(2) operates irrespective of delivery).

However, Readie Construction Ltd v Geo Quarries Ltd [2021] EWHC 3030 (QB) cast doubt on this interpretation. In that case it had been conceded that, on the facts, the supplier of the goods could only bring an action for the price if the requirements of s.49(2) were satisfied (s.49(1) was not applicable due to a retention of title clause). The difficulty was that, under the contract, delivery of the goods was a precondition of the payment of the price. Therefore, it was argued, that the price was not ’payable on a day certain irrespective of delivery’. This argument was rejected by Spencer J., relying on a decision of the High Court of Singapore in Mitsubishi Corp RTM International Pte Ltd v Kyen Resources Pte Ltd [2019] SGHCR 6, where it was held that the phrase in question ‘means that the time for payment may be, but need not be, contingent on delivery or the time of delivery’.

More recently, in CE Energy DMCC v Bashar [2025] EWHC 297 at [100] Paul Stanley KC (sitting as a Deputy High Court Judge) considered these issues and stated:

“…can a “day certain” be defined by reference to a contingent or future event, and can such an event include something that is to be done by one of the parties or a third person?.. I face a choice between two different first instance decisions. I have no hesitation, given both the weight of authority and the weight of reason, in preferring the view that a “day certain” can be so defined: that it means an ascertainable date not a pre-specified calendar date.”

He had some doubt, in principle, accepting the view that a “day certain” cannot be defined by reference to the date of delivery.  He also had some doubt about the reasoning, if not the overall decision, in Readie.  Thus, whilst CE Energy DMCC v Bashar continues the recent trend of widely interpreting the scope of s.49, uncertainty remains.  It seems that this case will be heard by the Court of Appeal (see Case Tracker for Civil Appeals) and it is hoped that this will result in more certainty.