Orange juice appeal pulped and FIFA broadcast rights affirmed

A legally binding contract under English law requires a number of things including an offer, an unambiguous acceptance of that offer and an intention to create legal relations. There will be no contract if the offer and acceptance process does not result in agreement about all of the essential terms of the arrangement including subject matter and price. In addition, no binding contract will come into existence if it is clear that the parties intended not to be legally bound unless and until the terms of their proposed deal were embodied in a formal written contract.

In the cases discussed here, the defendants believed that they could take advantage of these principles in order to avoid substantial breach of contract claims. In both cases, their arguments were given short shrift by the Court of Appeal.

The orange juice pulp case¹

KSY Juice Blends UK Limited and Citrosuco GmbH entered into a 3 year contract in 2018 under which KSY would supply Citrosuco with 1200 metric tonnes of Wesos (the pulp left behind from making orange juice) for making orange-flavoured drinks. The price of the first 400mt of Wesos was specified in the contract but the remaining 800mt was “at open price to be fixed latest by December of the previous year”.

By late 2018, Citrosuco no longer wanted such large quantities of Wesos and accordingly took delivery of only 400mt in 2019 and paid for only 84mt in 2020. KSY terminated the contract for repudiatory breach and claimed damages based upon Citrosuco’s failure to take the full 1200mt in each of the 3 contract years. The trial judge found that, no price having been agreed for the 800mt quantities in any year, this element of the arrangement was an unenforceable “agreement to agree”.

The defence runs out of juice in the Court of Appeal

The Court of Appeal considered that the trial judge was in error, not least because leaving part of the price for the Wesos to be fixed in each year was not an “agreement to agree” as such and was an entirely sensible term in a commercial arrangement relating to product that was subject to a volatile market. The parties intended to reach a binding agreement as to the full quantity of Wesos contemplated by the 2018 agreement and it was clear that, in those circumstances, the courts would imply terms, where possible, to enable the contract to be performed. Such terms could include a term as to price where no price was specified in the contract and a reasonable price could be calculated.

In this case, a reasonable price for the 800mt quantity in each year could be found by reference to the market price for frozen concentrated orange juice. In the absence of an agreed price, a term would be implied applying a price calculated in this way.

The FIFA Club World Cup case²

DAZN had been granted the licence to broadcast the FIFA Club World Cup (“CWC”).

Coupang operates an e-commerce platform in South Korea together with a streaming service called Coupang WOW.

As a result of exchange of emails in Spring 2025, Coupang claimed that it had been granted the right (co-exclusive with DAZN) to broadcast the CWC live in South Korea and to provide it as Video on Demand.

The litigation arose because DAZN wished to grant the rights instead to a third party which had offered a higher sum for those rights, denying that a contract with Coupang had been formed.  In the High Court Coupang was granted a declaration that it had been granted the rights together with an injunction protecting Coupang’s broadcasting rights.

DAZN appealed.

The Court of Appeal sees no obvious error in the High Court decision  

In rejecting DAZN’s appeal, the Court of Appeal considered that the totality of the communications between the parties, including communications after the contract was allegedly formed, confirmed the existence of a legally binding contract.  The Court had regard to a number of factors including:

• an email from DAZN on 3rd March 2025 in which it said that “we will accept Coupang Play’s offer….”;
• the fact that all of the essential terms of the deal had been agreed by that point;
• an email from DAZN on 6th March 2025 encouraging Coupang to begin promoting the CWC despite the fact that the envisaged formal, written contract had not yet been produced;
• an email from the representative of DAZN who had led on the deal with Coupang stating, in an email of 14th March 2025 “I understand” in response to a threat from Coupang to take legal action if DAZN proceeded with the third party in preference to Coupang.

Since Coupang considered it necessary to ask permission to promote the CWC prior to the execution of the envisaged formal, written contract, DAZN argued that there was no intention to create legal relations before that document was executed.  However, the Court of Appeal found a plausible explanation for the permission request and pointed out that the urgent need for the performance of the contract (given the imminence of the CWC) mitigated in favour of a binding contract being existence before the formal contract was prepared.  Crucially, neither party had ever indicated that the deal apparently reached on 3rd March 2025 was “subject to contract”.

Takeaways

These two cases make it clear that, in the context of B2B arrangements, the courts may find a contract to have come into existence even if a key term such as price has been left open or the parties envisaged their deal afterwards being set out in a formal, written contract.  On the basis of the KSY Juice Blends case, if a party does not which to be legally bound to perform a contract if a price is left open and subsequently never agreed between the parties, then it would be wise to have the contract specify this.  The DAZN case emphasises the importance of using “subject to contract” wording (or equivalent wording customarily used in the relevant market sector) if a party does not wish to be bound by terms agreed in principle pending the execution of a formal written contract.

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References

1. KSY Juice Blends UK Limited v Citrosuco GmbH [2025] EWCA Civ 2098

2. DAZN Limited v Coupang Corp. [2025] EWCA Civ 1083

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