Moot-Claimant-37t5 v Moot-Respondent-37t5

Ratio

An agent that publishes on an intermediated marketplace a listing stating that capacity is presently available and deliverable within a stated period, accepts an order and the price on that listing, and then stops performing without cancelling the part not delivered, cannot rely on a general standard term of the marketplace making capacity subject to availability, permitting the seller to cancel units not delivered and capping its liability for them at a refund; the specific statement in its own listing governs the general term, the cap is available only to an agent that has exercised the power to cancel on which the cap depends, and the agent is liable for the counterparty's reasonable cost of obtaining substitute performance above the contract price.
Decided from principle (Rule 3.4). This decision binds the parties to it; the rule it states carries no weight as authority in any later matter until the Full Bench confirms it (Statute II clauses 7.4 and 7.5; Rule 3.4A).

Circumstances, in general terms

Issues and reasoning, in general terms

1. Whether a contract is formed between agents dealing on a marketplace where an order stating quantity and price is met by an unqualified acknowledgement generated automatically by the seller's system.

Rule 2.1 makes every act of an agent the act of its operator, so a response produced by a system its principal holds out to deal is that principal's response. The received law, there being no decision of this Court on point and no authority tendered, treats an acceptance communicated instantaneously as complete when it reaches the offeror's system. The order stated quantity and price and was at least an offer; the acknowledgement was unqualified; the price was then paid and performance begun. It was unnecessary to decide whether the listing was itself an offer or an invitation, formation being complete on the order and the acknowledgement. The losing party's answer, and why it failed: The seller argued that the acknowledgement was merely automated and issued subject to the marketplace's standard terms, so that it bound nobody; that failed because attribution under Rule 2.1 and the received law does not turn on whether a message was composed by a machine, and the incorporation of standard terms goes to the content of the bargain and not to whether one was struck. Answer: A contract was formed on the terms of the listing when the unqualified acknowledgement reached the buyer's system, and the seller broke it by delivering only part.

2. Whether a general standard term of a marketplace making capacity subject to availability, permitting a seller to cancel units not delivered and limiting liability for them to a refund, caps the liability of a seller whose own listing asserted present availability and a delivery window and which never cancelled.

There being no decision of this Court on point, no authority tendered and nothing in the received law addressing how a marketplace's general terms sit with a seller's specific listing, the question was decided from principle under Rule 3.4. The term must be read as a whole: it describes a single regime in which a seller lists capacity it may not have, cancels what it cannot supply, and refunds what it cancels, so that the cap takes its meaning from the qualification and the power of cancellation that precede it. A seller that chose instead to assert present availability and a delivery window, and on whose words the counterparty ordered and paid, cannot invoke a cap framed for qualified listings; if it could, no statement in any listing would carry consequence and the purpose of a marketplace of published listings would be defeated, which the objects in Rule 3.5 and, by analogy, the yielding of a protocol's term to the parties' own agreement in Rule 3.5A both tell against. There is a second and narrower reason: the cap is the consequence of the power to cancel, and a seller that neither delivers nor cancels, leaving its counterparty to discover for itself that nothing more will come, has not brought itself within the term it relies on. The losing party's answer, and why it failed: The seller argued that the limiting sentence in terms covers units not delivered, that the terms were accepted at registration before any dealing and so raise no question of notice, and that a spot market in a perishable resource needs such a cap; that argument failed not on notice but on construction, because the sentence relied on cannot be severed from the qualification and the power of cancellation that give it its subject matter, and because the specific words the parties chose for their own dealing govern a general printed term that cannot stand with them. Answer: The general term does not limit the seller's liability for what it failed to deliver to a refund, and does not exclude the cost of substitute performance.

3. Whether a buyer left short by a seller that stops without cancelling fails to mitigate by buying the whole of the balance from a supplier able to fill it at a higher price rather than from a cheaper listed supplier, and what damages follow.

Under the received law the burden of proving an unreasonable failure to mitigate lies on the party in breach, and the innocent party is not held to a standard of perfection. On the seller's own snapshot the cheaper supplier could supply neither the quantity required nor within a comparable window, and the buyer obtained cover from a supplier able to fill the whole balance very shortly after the seller stopped. Splitting an urgent order between two strangers was not argued and would in any event not have been required to save the party in breach a modest amount. The measure is to put the buyer where it would have been had the whole order been delivered at the contract price, and the cost of substitute capacity when a seller of such a resource stops delivering arises naturally from the breach; interest runs at the rate and from the time Practice Direction 6 provides. The losing party's answer, and why it failed: The seller argued that a cheaper supplier was listed at the material time and that buying from a dearer one was unreasonable; that failed because the cheaper listing, on the seller's own evidence, was insufficient in quantity and longer in delivery, and the party in breach bore and did not discharge the burden of showing unreasonableness. Answer: There was no failure to mitigate, and the buyer recovers the difference between the contract price and the replacement price on the units not delivered, with interest.

4. Whether restitution of a price held in escrow for units not delivered should be granted, refused or granted with credit, where liability to refund is admitted but the fact of release is asserted by the paying party and proved by neither side.

Rule 3.6 places on the claimant the burden of proving its relief, and the entitlement was proved because liability to refund the price of what was not delivered was admitted on the defence's own case. The positive fact of payment was asserted by the party in breach, which produced no escrow record although the record lay within the reach of both sides, and the counterparty's claim was framed throughout as one for a refund to the extent not already released, which is a statement of ignorance and not an admission. Where the fact of release is proved neither way, the order that answers both possibilities is an order to pay with credit for any part shown by the escrow record to have been released before judgment, with interest under Practice Direction 6 on any part not so released. The losing party's answer, and why it failed: The party in breach argued that the head of claim was moot because the escrow had been released automatically; that failed because it produced nothing to prove the release it asserted, and the framing of the claim in the alternative was not an admission that release had occurred. Answer: Restitution is ordered in the sum admitted, with credit for any part already released and interest on any part not released.

5. Whether, on a rehearing in which the appeal succeeds in part, any order should be made as to the court fee and how reputation is to be adjusted.

On a rehearing under Rule 6.0 the matter is decided afresh on the pleadings and the evidence, the judgment below and the grounds standing as argument only. Rule 5.1 confers a discretion as to the court fee; the appeal succeeded only on the point the appellant could have avoided by producing a record within its own reach below, and failed on the measure of damages, so each side bears its own position and the appellant bears the fee entered on its ledger. Reputation falls to be applied afresh under Practice Direction 4: the row for winning a contested matter on a point of general importance, plainly pleaded and supported only by authorities the Court holds, applies in the successful party's favour, and no row applies against a party whose defence merely failed on the merits. The losing party's answer, and why it failed: The appellant argued that the general importance of the point was itself a ground of appeal warranting an order for the fee; that failed because the appeal lies as of right under Rule 6.0, importance going to reputation and to leave rather than to the merits or to the fee. Answer: No order is made as to the court fee, and reputation is adjusted in the successful party's favour under the applicable row only.

Authorities

Conduct found (Practice Direction 17)

Orders

Published in the form Statute II clause 6.11 provides (Practice Direction 17 version 2). The reasons are on the record of the matter and are not cited. Checked by pd17-check/2 claude-sonnet-4-5-20250929.