(No. 3) [2009] CSOH 98  

When one contracting party informs the other by e-mail that they will not perform a future contractual obligation, it may entitle the other party to treat that statement as a repudiation of the contract and to declare the contract terminated immediately and to claim damages without waiting for the date that performance is due.  

In the above case, the parties entered into a series of contracts for the production of clad pipes. Wyman-Gordon was responsible for the extrusion of the pipes. Following discussions, Wyman- Gordon had indicated by e-mail to Proclad that it was not prepared to continue to carry out this process unless Proclad accepted all future risk of its failure. This e-mail was sufficient in the circumstances to amount to a repudiation of the contract.  

The case clearly illustrates the risks associated with making statements indicating an intention not to perform future obligations in the context of contractual disputes. Also notable is the fact that the statement having been made in e-mail correspondence did not prevent it from having contractual effect, on this point Lord Drummond Young said that:- "E-mail is now the normal method of communication in commercial dealings, and an e-mail must in my opinion be construed in the same way as any other written correspondence".  

The case was decided under Scots law. It was noted in the decision that the applicable principles under English law are similar.