Liisa Lahti successful in Court of Appeal on clarification of “Agreement to Agree”

KSY Juice Blends UK Limited v Citrosuco GMBH [2025] EWCA Civ 760

The dispute concerned a contract for the sale of orange juice pulp wash (or “Wesos”) in which the parties had agreed a price for the supply of yearly (approx.) 400 metric tonnes but had left the remaining quantity (yearly approx. 800MT) to be supplied at an “open price to be fixed”. The contract contained a “free-trucks mechanism” such that the price determined the precise quantity to be delivered.

It was common ground between the parties that the price for the yearly 400MT of Wesos had been fixed and that as such that part of the contract was enforceable. The dispute concerned the remaining 800MT (yearly) of Wesos for which the price was left open “to be fixed” (periodically at the end of each year prior to deliveries the following year).

Citrosuco argued that the contract was unenforceable as a mere agreement to agree insofar as the yearly 800 MT was concerned. Following a four-day trial in 2024 the trial Judge accepted Citrosuco’s argument and accordingly dismissed most of KSY’s claim for the price of the Wesos, alternatively damages.

KSY appealed the central finding that the contract was unenforceable as an agreement to agree, contending that on a true construction of the contract or by way of an implied term (implied by section 8(2) of the Sale of Goods Act 1979 or otherwise), failing agreement as to price a reasonable, or a market, price was to be paid in relation to the “open price to be fixed” quantities.

The first instance Judge granted KSY permission to appeal to the Court of Appeal. The hearing took place on 15 May 2025 before Lord Justice Baker, Lord Justice Popplewell and Lord Justice Zacaroli.

The appeal was allowed. The Court of Appeal found that the contract was enforceable in its entirety and that a “a term is to be implied to the effect that the price of Wesos, for the purposes of establishing the quantity of Wesos to be supplied each year in excess of 1274MT, was to be fixed, in the absence of agreement, as a reasonable or market price”.

The case raises interesting questions about

• The interrelationship between s8(2) of the Sale of Goods Act 1979 and the “Rix/Chadwick principles”, which concern the enforceability of “agreements to agree” (derived from Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD[2001] 2 Lloyd’s Rep 76 and B J Aviation Ltd v Pool Aviation Ltd [2002] 2 P & CR 25);
• The relevance of some of the matters listed in the “Rix/Chadwick principles” such as the existence (or not) of an arbitration clause;
• The degree of certainty required to imply a term that a reasonable or market price be paid if nothing else is agreed; and
• The meaning of “market price”.

The case will be of particular interest to those dealing with long-term commercial agreements where there is a need for flexible pricing mechanisms given the impact of fluctuations in market forces.

Liisa Lahti, instructed by Lee Fisher and Holly Spencer-Biggs at Blake Morgan LLP, acted for the successful appellant (KSY).

Read the judgment in full here.