KSY Juice Blends UK Limited v Citrosuco GMBH

A contractual reference to an open price does not necessarily make a long-term commercial supply agreement an unenforceable agreement to agree. The court must determine whether the parties intended to be bound, or instead intended to remain free to agree or disagree about price in pursuit of their separate commercial interests.

Where the bargain was intended to be binding and an objectively reasonable or market price can be ascertained, a term fixing that price in default of agreement may be implied. Sale of Goods Act 1979 section 8(2) does not prevent that common-law implication.

KSY agreed to supply Citrosuco with Wesos under a three-year contract. The contract fixed an invoicing price and contained a free-trucks mechanism. It expressly fixed the real price for part of the annual quantity, but described the price for the remaining notional 800 metric tonnes each year as an open price to be fixed by December.

Citrosuco did not agree those prices and declined most further deliveries. KSY terminated the contract and claimed the price or damages. The High Court dismissed the bulk of the claim, holding that the unpriced part was an unenforceable agreement to agree: [2024] EWHC 2098 (Comm). The appeal concerned whether the contract, properly construed or supplemented by an implied term, required a reasonable or market price.

1. Appeal allowed. Zacaroli LJ, with whom Popplewell and Baker LJJ agreed, held that a term was implied requiring the price for the relevant Wesos to be fixed, if the parties did not agree it, at a reasonable or market price.

2. Section 8(2) of the Sale of Goods Act 1979 did not bar a common-law implication of that kind. Whether price is determined by a contract requires consideration of both its express and properly implied terms. If a reasonable-price term is implied, the statutory provision is unnecessary; it is not a reason to deny the implication.

3. Although the contract envisaged that the parties would initially seek to fix the annual price by agreement, it did not expressly provide that the whole bargain depended on their future agreement. The fixed duration, agreed invoicing structure, annual value and minimum supply commitments showed an intention to create a binding three-year arrangement. The fact that one part was independently enforceable was no reason to be less ready to preserve the balance of the bargain.

4. The absence of a transparent Wesos market did not prevent an objective price being found. The unchallenged finding was that Wesos generally traded at about 70% of the price of FCOJ, for which there was a transparent market. The remaining pricing variables were either addressed by the contract, irrelevant on the facts, or objectively ascertainable. Nor did the absence of an arbitration clause prevent a court from determining price where objective criteria existed.

• Court of Appeal (Civil Division): allowed KSY’s appeal in [2025] EWCA Civ 760 and held that a reasonable or market price term was implied for the disputed annual quantity.
• High Court (Commercial Court): dismissed the bulk of KSY’s damages claim, holding that the price for that quantity was left to future agreement and was unenforceable: [2024] EWHC 2098 (Comm).