As noted above, a common deduction on the amount of TOP is a commodity that the seller has not been able to deliver. When drafting a take-or-pay clause, it is necessary to carefully consider the fact that the buyer cannot prevent the delivery of the goods and then claim that it should be a deduction on the higher quantity. In order to resolve this problem in a payment contract payable, it is appropriate to provide better legal and editorial practice for a seller to provide that his obligation is fulfilled when he spends or makes available the agreed quantity of goods to be delivered to the buyer, instead of declaring that the seller must deliver the goods to the buyer. There are a number of English cases that seem to equate the delivery offer with the actual delivery, but these cases were not created in the single take-pay contractual situation, in which the buyer`s obligations are in the alternative, and these cases are therefore separate for these reasons. Such cases are also at odds with the UCC`s arguably better-justified practice that the seller`s obligation is fully met when he calls on the buyer for delivery to the agreed delivery location of the reported quantity and quality. Company A agrees to purchase 100 million cubic feet of natural gas from Company B. If at the time of delivery, Company A takes only 80 million cubic feet, then it will pay a fine. The fine is based on pre-agreed terms. It is also a « homicide clause. » These agreements are usually signed by companies when their suppliers ask them to purchase a certain amount of items until a specified date, and a fine is imposed if they do not. In this type of agreement, the seller is protected against a possible loss of money from the production of the item that the buyer should buy. In this sense, the seller must, in order to be able to require any buyer, to be able to require any buyer to cover the costs incurred by activating his own take-or pay clause against his supplier, exhaust his own delivery conditions and put an end to the amounts of make-up owed to him, providing a detailed breakdown of the actual activation costs of this clause. Indeed, if the seller`s cost was indeed nil or lower than what actually corresponds to each buyer, the seller`s right should be reduced to that amount.
A significant risk zone for take-and-pay contracts appears at the beginning of deliveries. If the buyer is delayed in commissioning the facilities necessary to supply the goods, the seller still expects that the obligation to take or pay begins on the first delivery date of the contract: deliveries cannot begin, but the commitment to take-or-pay begins. However, the seller must be able to prove that the seller is available, despite the buyer`s delay, to provide the goods for delivery. Otherwise, the buyer can prove that the seller cannot complete the delivery, he can possibly argue that the amount of TOP is reduced, eliminating the delimitation of the take or payment. When faced with this problem, the seller still has to do all his power to demonstrate his ability to deliver the goods. In practice, this meant that vendors completed wells and completely occupied production facilities, when it was clear that their buyer would be put into service several months or years too late. The provision of section 24 is an imperative right given the appropriate purpose. Gas sales contracts should adopt the legal requirements for establishing obligations under the « Take-or Pay » clauses and establish specific conditions for the use of the receivables under this clause. In any event, these agreements and claims must not lead to a violation of the parameters of Article 24. In addition to overhead, there are two other reasons why energy projects go to such futures or pay-pay contracts: given the compensatory nature of take-pay clauses, the general principles of injury and, in particular, the limits of the extent of the damage apply, such as the obligation to take into account the damage suffered.