ABSTRACT
[13.01] Suppose the supplier tenders goods which do not comply with the contract description in a manner which is not de minimis; that is, ‘microscopic deviations which businessmen and therefore lawyers will ignore’. 1 Two explanations of his conduct may be possible. First, his act may suggest that he has no intention of performing the existing contract, but is offering to enter into a new contract to deliver the goods tendered, this new contract to discharge the old one. 2 The supplier is then making an entirely new offer, which the offeree has complete freedom to accept or reject: 3 if he accepts it, the old contract is at an end; 2 but, if he rejects that offer, he may sue for breach of the existing contract. 4 Second, it may be clear that in tendering goods which do not comply with the contract description the supplier does not intend to make a new offer, but is merely trying to perform, albeit defectively, the existing supply contract. In such a case, acceptance of the goods tendered will neither create a new supply contract nor discharge the old one: it will merely limit the remedies available to the transferee for breach of contract, 4 for it will operate as an election to forego the right to repudiate so that he can thereafter only claim damages in respect of that breach (see para 29.04 ). Thus, in Albright & Wilson UK Ltd v Biochem Ltd: 5
A Ltd, a chemical producer, had two different plants (A & B) on the same site. A Ltd placed two orders with different suppliers as follows: (i) with Berk for 23 tons of sodium chlorate for delivery to their plant A; and (ii) with X for 23 tons of EPI for delivery to their plant B. Both sellers engaged the same delivery agent, who mixed up the two orders. As a result, 23 tons of sodium chlorate was delivered by tanker to plant B, together with a delivery order saying it was EPI from X. The tanker discharged into existing stocks of EPI, causing an explosion.
