Commercial Contracts Law Update: Recent Developments for Practitioners

Commercial contract disputes rarely turn on novel doctrine. Far more often they turn on how the courts apply established interpretation principles to the facts in front of them — and over the past two years the Supreme Court and Court of Appeal have handed down a run of decisions that sharpen, and in one case correct, exactly those principles. Alongside the case law, the Digital Markets, Competition and Consumers Act 2024 and the ongoing digitalisation of trade documentation are changing the compliance backdrop against which commercial terms are drafted and enforced. This update pulls the key developments together for commercial solicitors advising on drafting, negotiation and dispute strategy.

The interpretation framework practitioners are working within

Every case discussed below is decided against the same backdrop: the modern, unified approach to contractual interpretation set out by the Supreme Court in Arnold v Britton [2015] UKSC 36 and Wood v Capita Insurance Services Ltd [2017] UKSC 24. That approach requires the court to ascertain the objective meaning of the language used, read against the contract as a whole and its commercial context, using language as a guide but not allowing a purely literal reading to defeat business common sense, and equally not allowing a search for commercial common sense to override clear words. Wood v Capita in particular confirmed that textual and contextual analysis are not competing methodologies but tools to be used together, with their relative weight depending on the nature, formality and quality of drafting of the contract in question. Nothing in the recent case law below displaces that framework — if anything, each decision reinforces it, with the courts repeatedly declining invitations to depart from clear contractual language in the name of commercial fairness.

RTI Ltd v MUR Shipping BV: certainty over pragmatism in force majeure clauses

The most significant recent Supreme Court authority on the operation of contractual mechanisms remains RTI Ltd v MUR Shipping BV [2024] UKSC 18. The case concerned a force majeure clause in a contract of affreightment that excused non-performance where the triggering event could not be overcome by the exercise of “reasonable endeavours.” When US sanctions affected the charterer's ability to make payments in the contractual currency, the charterer offered to pay in euros instead and cover any conversion costs — a workaround that would have left the shipowner in exactly the same economic position. The owner refused and invoked force majeure.

By a 4-1 majority, the Supreme Court held that a reasonable endeavours proviso does not require a party to accept an offer of non-contractual performance, even where accepting it would have made no practical difference to the outcome. Reasonable endeavours are directed at overcoming the force majeure event while continuing to perform the contract as agreed, not at requiring a party to vary its bargain. The decision is a clear statement that contractual certainty is to be preferred over ad hoc fairness: parties who want a force majeure or reasonable endeavours clause to require acceptance of substitute performance need to say so expressly. For practitioners, the practical lesson is in the drafting rather than the litigation — reasonable endeavours and force majeure clauses should specify whether alternative or substitute performance must be considered, rather than leaving the point to be inferred.

King Crude Carriers v Ridgebury November: no implied “deemed fulfilment” doctrine

In King Crude Carriers SA v Ridgebury November LLC [2025] UKSC 39, handed down on 12 November 2025 on appeal from [2024] EWCA Civ 719, the Supreme Court unanimously rejected an argument that English law recognises a general “deemed fulfilment” principle — sometimes traced to the older case of Mackay v Dick — under which a condition precedent to payment is treated as satisfied where one party's own breach prevented it from being fulfilled. The dispute arose out of tanker sale agreements on the Norwegian Saleform 2012 form, where the buyers' deposit obligation was expressly conditional on a deposit-holder confirming that an escrow account was ready to receive funds; the buyers' failure to provide know-your-client documentation meant that condition was never satisfied, and the sellers argued the deposit should be treated as having accrued regardless.

The Court held that whether an obligation has accrued is a matter of ordinary contractual interpretation and, where relevant, implied terms — not a freestanding equitable doctrine that can override express conditional language. Because the contract tied deposit accrual explicitly to account confirmation, and that confirmation never occurred, the deposit obligation simply never arose; the sellers' remedy lay in damages for breach, not in enforcing a debt that had not, on the contract's own terms, accrued. The decision is a useful reminder that the courts will not smuggle in relief through an unpleaded general doctrine where the answer is available — even if commercially harsh for the innocent party — from the express words the parties chose. It reinforces the same message as MUR Shipping: certainty of language, not perceived fairness, drives outcomes, and it is a useful case to have on hand whenever advising on conditions precedent to payment, deposit and escrow mechanics, or termination triggers.

EE Ltd v Virgin Mobile Telecoms Ltd: exclusion clauses given their natural meaning

The Court of Appeal's decision in EE Ltd v Virgin Mobile Telecoms Ltd [2025] EWCA Civ 70 is a further illustration of orthodox, literal-first construction being applied to a negotiated exclusion clause. EE supplied network access to Virgin Mobile under an exclusivity arrangement; when Virgin Mobile began routing traffic through a rival network in breach of that exclusivity, EE claimed damages representing the network charges it would otherwise have earned. Virgin Mobile relied on a clause excluding liability for “anticipated profits,” arguing this captured EE's claim.

By a 2-1 majority, the Court of Appeal agreed, holding that the natural and ordinary meaning of “anticipated profits” extended to the lost network charges EE was claiming, even though those charges arguably represented the core financial benefit of the exclusivity bargain rather than a peripheral consequential loss. The dissenting judgment argued that construing the clause this broadly effectively deprived EE of any meaningful remedy for breach of the central obligation in the contract — a result the dissent considered unlikely to reflect the parties' objective intentions. The majority's approach confirms that, absent genuinely ambiguous wording, English courts will not narrow a clearly drafted exclusion clause simply because its effect is to leave a claimant with little or no practical remedy. For solicitors drafting or negotiating exclusion and limitation clauses, the case is a strong argument for precision: if certain heads of loss (such as charges that would otherwise have been earned under an exclusivity or minimum-volume arrangement) are meant to survive an exclusion of “loss of profits,” that carve-out needs to be spelled out rather than assumed.

Good faith and relational contracts: still unsettled

The doctrine of implied good faith in “relational” commercial contracts continues to develop incrementally rather than through a single decisive appellate ruling, and practitioners should treat it as an area of genuine uncertainty rather than settled law. The starting points remain Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111 (QB), in which Leggatt J (as he then was) first recognised that certain long-term, collaborative commercial contracts may carry an implied duty of good faith, and Bates v Post Office Ltd (No 3) [2019] EWHC 606 (QB), the Horizon litigation in which Fraser J set out a now widely cited list of characteristics indicating a relational contract — long-term duration, significant investment by a party, communication and cooperation as an inherent aspect of performance, and a high degree of mutual trust and confidence. Subsequent case law has continued to test and, at times, narrow how readily those characteristics will be found outside clear-cut long-term collaborative arrangements, and commentators tracking the trend through 2025 have described the current position as one of principles genuinely “in flux” rather than converging on a settled test. In practice, this means an implied duty of good faith should never be assumed: where collaboration and trust are central to a long-term supply, distribution, franchise or joint-venture arrangement, an express good faith clause, drafted to state clearly what it does and does not require, remains far more reliable than hoping a court will imply one.

Legislative developments: the Digital Markets, Competition and Consumers Act 2024

On the legislative side, the Digital Markets, Competition and Consumers Act 2024 (DMCCA) is the most significant change to the commercial regulatory landscape in several years, even though its main thrust is consumer protection rather than B2B contract law. Its unfair commercial practices provisions — including a ban on “drip pricing” (advertising a headline price and adding mandatory charges later in the purchase journey) and a new duty on businesses to take reasonable steps to ensure online reviews they publish or commission are genuine — came into force on 6 April 2025. Crucially for enforcement strategy, the DMCCA also gave the Competition and Markets Authority a new direct enforcement power: for the first time, the CMA can determine for itself that a business has breached consumer protection law and impose fines of up to 10% of global turnover, without first obtaining a court order. Further subscription contract reforms — covering pre-contract information, cancellation mechanics and a cooling-off period before renewal charges are taken — are scheduled to come into force in spring 2026 and are not yet in effect.

Although the DMCCA's substantive provisions are consumer-facing, commercial solicitors should not treat it as irrelevant to B2B work. Many commercial clients sell to consumers as well as businesses, use standard terms drafted for both markets, or operate marketplaces and subscription models where a B2C obligation shapes the underlying commercial contract with suppliers or intermediaries. The strengthened, court-order-free CMA enforcement regime also raises the stakes for any commercial arrangement that touches consumer-facing pricing, reviews or subscription practices, and warranty and compliance provisions in supply and distribution agreements are increasingly being redrafted with DMCCA exposure specifically in mind.

Digital contracting: the Electronic Trade Documents Act 2023 beds in

On digital contracting more broadly, the Electronic Trade Documents Act 2023, in force since 20 September 2023, continues to reshape how certain commercial documents are executed and transferred. The Act gives electronic versions of trade documents — including bills of lading, bills of exchange, promissory notes and ship's delivery orders — the same legal status as their paper equivalents, provided a “reliable system” is used to ensure exclusive control and an audit trail equivalent to possession of a paper original. Two years on, adoption is accelerating across trade finance, shipping and commodities practice as platforms and banks build out compliant systems, and solicitors advising on international sale and carriage contracts should expect electronic trade documentation to be the norm rather than the exception within the life of current transactions, with contractual documentation increasingly needing to specify which electronic systems the parties will treat as reliable for these purposes.

Practical takeaways for commercial solicitors

• Draft reasonable endeavours and force majeure clauses precisely. Following MUR Shipping, specify expressly whether a party must accept substitute or non-contractual performance to overcome an event, rather than leaving the point to inference.
• Tie conditions precedent to clear, objectively verifiable triggers. King Crude Carriers confirms the courts will enforce a condition precedent exactly as drafted, even where the result appears harsh; deposit, escrow and payment-trigger clauses should anticipate what happens if the condition is never satisfied.
• Be explicit about what an exclusion clause is meant to exclude. After EE v Virgin Mobile, do not assume a broad “loss of profits” exclusion will be read down to preserve a meaningful remedy — carve out any loss category that must survive.
• Do not rely on implied good faith. Where genuine collaboration matters to a long-term arrangement, draft an express good faith or cooperation clause rather than hoping the relationship will be characterised as “relational” if a dispute arises.
• Audit consumer-facing terms against the DMCCA. Review pricing presentation, review solicitation and (ahead of spring 2026) subscription and renewal terms for DMCCA compliance, given the CMA's new direct enforcement powers.
• Plan for electronic trade documentation. In trade finance, shipping and commodities work, confirm which electronic systems count as “reliable systems” under the 2023 Act and reflect that in contractual documentation.

These developments also have implications beyond contract drafting — boards and general counsel are increasingly weighing them alongside wider governance obligations, a theme explored further in our company law and directors' duties update.

Frequently Asked Questions

Has RTI Ltd v MUR Shipping changed the test for force majeure clauses generally?

Not the general test for whether a force majeure event has occurred, but it does clarify what a “reasonable endeavours” proviso requires: a party is not obliged to accept an offer of non-contractual performance to overcome the event, even if doing so would leave the other party in the same economic position. The precise scope of any reasonable endeavours obligation still depends on the specific wording used.

Does King Crude Carriers mean deposit and escrow clauses are now harder to enforce?

No — it means they will be enforced strictly according to their terms. If a deposit clause is drafted so that the obligation to pay only accrues once a specified condition is satisfied, the courts will not treat that condition as met simply because the other party's breach caused it to fail. Drafters should think through, and provide for, what should happen if the condition is never satisfied.

Is there now a settled duty of good faith in English commercial contracts?

No. English law still does not recognise a general, freestanding duty of good faith in commercial contracts. Courts may imply a duty in contracts exhibiting relational characteristics identified in cases such as Yam Seng and Bates v Post Office, but the boundaries of when that will happen remain unsettled, and an express good faith clause is a far more reliable way to achieve the intended outcome.

Does the Digital Markets, Competition and Consumers Act 2024 apply to contracts between two businesses?

Its core unfair commercial practices and subscription contract provisions are aimed at consumer protection, so most pure B2B contracts fall outside their direct scope. However, businesses with consumer-facing sales, subscription or review functions — and any commercial contracts that reference compliance with consumer protection law — should factor in the CMA's strengthened direct enforcement powers when reviewing risk.

Keeping pace with case law and legislative change of this kind is a core part of commercial practice, not a one-off exercise. Learnsignal's CPD courses help solicitors and other legal professionals stay current on developments like these throughout the year, with structured content that fits around a busy caseload.