Dear Andrew, all

This decision (and permutations on the facts you outline) seems to
give rise to all kinds of interesting and difficult questions.

Suppose for example that the debtor was solvent when it breached its
contract but the debt would not fall due under the original loan
contract for a period (perhaps a substantial period). Would damages be
discounted to take account of:

1. The time value of money e.g. that a sum of money now is worth more
than the same sum paid in say 5 years time, where a judgment for
damages would be enforceable immediately on judgment? and/or
2. The risk that in the period between judgment for damages and the
date on which the debt would have fallen due had the loan contract
been performed the debtor would have become insolvent, so that had the
loan contract been performed the creditor would have received less
than the money payable by virtue of the loan.

Presumably also, to ground an action for damages, a positive statement
that the debtor will not pay under any circumstances would be required
and it would not be enough that the debtor indicated that it did not
expect to be in a position to honour its commitments due to
insolvency, in circumstances where the debt has not yet fallen due -
At least where there is no condition in the loan documentation stating
that the debtor is in default if it becomes insolvent (I recognize
such conditions are very common).

I have not yet read this decision but will do so, if I can track it down.

Kind regards

Ger

On 9/16/15, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:
> Suppose you owe me £1,000 for goods supplied a month ago, the sum being
> payable on Friday. On Monday you say you haven't got any money and won't
> be paying. Can I sue you on Tuesday?
>
> The Singapore CA has said that the answer is Yes, provided I
> characterise my payment as a claim for damages rather than debt, and say
> at the time I sue that I am accepting your anticipatory breach. In The
> STX Mumbai [2015] SGCA 35 bunker suppliers, told that they wouldn't be
> getting paid by an insolvent shipowner, demanded payment and arrested
> the ship a couple of days before the money was actually due. Held: this
> was permissible (after a long analysis of anticipatory breach). Seems
> logical, albeit it apparently carries the implication that saying you
> won't pay a debt now automatically accelerates it.
>
> Andrew
>
> --
>
>
> *Andrew Tettenborn*
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