Template:M summ EFET Allowance Annex 6

6.1 Compliance Period/Contract Quantity/Holding Account

Transfer from a specified Holding Account

Curious conditionality, across all three versions, where the Buyer specifies a Holding Account from which Allowances must be delivered, and not just the account to which they must be delivered. Quite why it should matter whence the Allowances come we cannot say — a vague fretfulness about theft perhaps? — but ok; let’s run with it.

Note, in any case, its moderation in IETA (5.2) whereby one has an obligation to make sure there are sufficient allowances in your account to satisfy your delivery obligation. So even though you can’t be forced to deliver from anywhere else, you can be sued for losses arising from your failure to ensure there was something to deliver in your Holding Account. All rather cack-handed, but in “fundamental upshot” terms, this does get to the right place.

The transfer is done once the Allowances hit the Seller’s account (I know, I know: you don’t say.) But wait: there is an interesting use of the word “whereupon” here, upon which we dwell in a bit more detail in the premium section.

6.3 No Encumbrances

There are times when you wonder whether the crack drafting squad™ for first conceived of this — we think it was IETA’s, but you never know — didn’t fall through some wormhole into a parallel, more paranoid, universe, when drafting their hypotheticals. What, honestly, is going on here? Take a crumb comfort from the fact that the drafting is more or less the same which ever master agreement form you are using.

What a shower. There will seldom come a time where a nutshell version of a clause would come in more handy, readers. If only you subscribed to the premium version of the JC you would have one. It is partly a case of shambolic conceptual organisation, partly ropey drafting, but this clause makes an omnishambles of a fairly straightforward concept.

You might struggle to believe it from reading the clause, but what happens is this: if Delivering Party delivers Allowances in fragrant disregard of the fact that some random has a claim on them, and Receiving Party finds out — presumably by means of an angry letter from said random — Receiving Party can send Delivering Party a notice, calculate its loss (which we suppose would be the market value of any Allowances it has to account to said angry, letter-writing random) and send an invoice. Delivering Party has three Banking Days to pay, with interest. Once paid, that’s it, everyone moves on. Though there is an odd caveat that this procedure is without prejudice to any defences Delivering Party might have, including ones based on limitation periods — which makes us think the responsible crack drafting squad™ had some morbid fear of calumnies buried deep in ancient history coming back to bite them.

Note: contractual limitation periods run from the point where the cause of action arises, not when you reasonably could know you have suffered a loss.

6.7 Seller and Buyer Risks

The usual winsome statement of the bleeding obvious: costs and risks lie where they fall.