An interesting case with respect to its facts and the recognition of the character of the decision at trial (and that it was an application for a summary decision) has a greater impact on the assessment of damages in the event of non-compliance with the decision in general. In its logical conclusion, Comau effectively limits the damages that could be awarded to innocent parties who face a negative offence, in the event that the contract includes a termination clause, as many people often do. Although Comau was merely a trial decision on an injunction, it is a strong reminder that applicants are informed that their “waiting interests” (and all related harms as a result of a right of refusal) may be severely limited in cases where the applicable contract involves termination for convenience. This has implications both for how contracts are originally developed and on whether and how contracts should be terminated. However, the termination of accommodation clauses will remain economically viable in many contractual situations; the key is to understand in advance what they bring and what they can take with them. Under common law, one party may terminate a contract if the other party has refused that contract (i) by renouncing its commitments under this contract; (ii) by the possibility of making it impossible to execute the contract by its own act; or (iii) a total or partial loss of performance that is the basis of the contract. The term “non-refusal” also includes a situation in which a party breaches a contractual condition, z.B if the parties have expressly agreed that a delivery deadline or date is “essential” for the delivery of a product and that the supplier party does not comply. All of these circumstances can be grouped according to the concept of termination under the common law, which differs from termination under an express contractual clause. At the end of the notice period in point 14 above, a lump sum is charged to the owners, which must be reduced accordingly when the crew members leave the vessel and arrive at their place of residence until they arrive. The owners of three vessels have entered into the standard BIMCO Crewman B (package) form of crew management agreements. The clauses in question provide that it may be of considerable importance to distinguish termination from termination under a contractual clause and termination at common law.
A right of contractual termination may be exercised even if the offence is not serious enough to warrant a termination under common law and even if there is no offence at all. The method chosen can result in a significant difference from the amount of eligible damages, so it is essential to make a prudent decision. However, what Comau comments clearly and to the detriment of the applicant is the potential impact of a termination clause on an action for damages on a loss or loss of earnings. Termination for convenience reasons is the “lesser” obligation to pay all payments due within the full term of the contract and, applying the principle that the defendant would have fulfilled its obligations in the most burdensome manner for it, the judge found that the “loss of a good deal” of an applicant in an application for non-compliance with the contract is in fact limited by any termination of clauses applicable in the contract.