Deal or No Deal? Lessons from DAZN v Coupang and KSY Juice Blends v Citrosuco

INTRODUCTION

1. In a claim for breach of contract, the question often arises whether the parties have indeed reached a valid and binding contract at all. Establishing that no such contract exists can provide a powerful defence to the claim.
2. Two recent decisions of the Court Appeal decisions have explored different aspects of this question:
   
   a. In August 2025, the Court of Appeal considered whether a final binding agreement had been reached in DAZN Limited v Coupang Corp. [2025] EWHC 1266 (Comm).
   
   b. In June 2025, the Court of Appeal handed down judgment in KSY Juice Blends UK Limited v Citrosuco GmbH [2025] EWCA Civ 760 which concerned whether part a contract simply amounted to an agreement to agree and therefore was not a complete and enforceable contract.
3. In respect of each issue, this article will first provide a reminder of the law, before turning to consider the Court of Appeal’s recent decision.

(A) AN AGREEMENT

(i) The Relevant Law

4. For as long as there have been agreements, there have been disagreements. Over centuries, the Courts have developed a settled body of principles to determine when parties have moved beyond negotiation to the point of a legally binding contract.
5. Objective approach. The Court’s task is to determine whether, viewed objectively, the parties intended to create legal relations on sufficiently certain terms. Importantly, the whole course of dealings must be considered, not just isolated communications (Hussey v Horne-Payne (1878) 4 App Cas 311; Global Asset Capital v Aabar Block [2017] EWCA Civ 37).
6. Offer and Acceptance. A binding contract may be formed even if the agreement was made orally or in an informal setting. However, the more significant the contract and the more casual the context (for example, a conversation in a pub), the less likely it is that an objectively binding agreement will be found (Blue v Ashley [2017] EWHC 1928). The key question is whether the essential terms were agreed upon and intended to take immediate effect. The burden rests on the party asserting a contract to demonstrate that such intention and agreement existed (Smit Salvage BV v Luster Maritime SA (The Ever Given) [2024] EWCA Civ 260).
7. Certainty. As outlined further in the second part of this article, a contract must be sufficiently certain to be enforceable, though not every term needs to be fixed.
8. Long-form contracts and ‘subject to contract.’ The fact that parties envisage later contractual documentation does not, by itself, prevent a binding agreement. The key is whether the parties reserved their position with clear wording, such as ‘subject to contract’ (Chillingworth v Esche [1924] 1 Ch 97). In the absence of such or similar wording, where essential terms are agreed, later documentation is generally “a mere expression of the desire … as to the manner in which the transaction already agreed to will in fact go through” (per Parker J in Von Hatzfeldt-Wildenburg v Alexander [1912] 1 Ch 284 at 289).
9. Subsequent conduct. The way the parties behave after a contract is allegedly concluded may be relevant evidence of whether they regarded themselves as bound. As Bingham J observed in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601 at 6, the parties “are the masters of their contractual fate:” they decide which terms they consider are essential, and if they act on the basis that a binding deal is in place, this is strong evidence of agreement.

(ii) Case Law Update: DAZN Limited v Coupang Corp. [2025] EWCA Civ 1083

10. DAZN v Coupang is a modern-day illustration of how the traditional principles of contract formation operate in the digital age. The central issue on appeal was whether a legally binding agreement was reached between DAZN (the holder of FIFA’s global broadcasting rights) and Coupang (a South Korean e-commerce and streaming service provider) for ‘co-exclusive’ broadcasting rights of the tournament South Korea.
11. The 2025 FIFA Club World Cup was just weeks away. FIFA had licensed global rights to DAZN who was in turn authorised to sublicence broadcasting in different territories. Coupang saw its opportunity and moved to secure the rights for South Korea. The urgency of the deal was crucial: both sides needed to agree a price and launch marketing fast.
12. In this context, negotiations took place informally via WhatsApp, phone calls, and short emails between only a few representatives for each party: Andrea Radrizzani and Charles Ma (DAZN) on one side; John Lee and Danny Kim (Coupang) on the other. The negotiations panned out as follows:
    
    a. WhatsApp phase (Jan–Feb). Radrizzani and Lee traded WhatsApps and calls about price and scope. DAZN pitched at $2m; Coupang pushed back. By 25 February, Radrizzani floated $1.7m as a workable figure.
    
    b. 27 February Email – the alleged offer. On a WhatsApp call, Lee confirmed Coupang’s willingness to pay $1.7m. Minutes later, Kim followed up by email setting out the essentials: rights (live + VOD), territory (South Korea), co-exclusivity, price ($1.7m). The email ended: “We are very excited to land this new deal… eager to move on to the contractual phase.” This was the first use of email throughout the negotiations.
    
    c. 3 March Email – the alleged acceptance. After internal approval, DAZN emailed: “We will accept Coupang Play’s offer… we will start contract drafting.” Radrizzani also WhatsApped: “deal is confirmed.” Follow-ups from both sides were celebratory: “great to do a deal with you… look forward to working with you.”
    
    d. Aftermath. Even when rival bidders (Soup and Naver) later offered $3.5m and $4.5m, which DAZN described as “an issue” for the deal, Radrizzani nevertheless acknowledged the deal was “finalised” and “done and confirmed last week.” Lee threatened legal action if DAZN pulled out. Radrizzani replied: “I understand.”

13. At first instance, after an expedited hearing on 16 May 2025, HHJ Pelling KC declared that a binding contract had been formed and ordered specific performance (delivery of the broadcast feed) together with an injunction restraining DAZN from undermining Coupang’s co-exclusive rights.
14. DAZN appealed, arguing (as it related to the substantive issues):
    
    a. The 27 February email was not an offer;
    b. The 3 March email was not an unqualified acceptance; and
    c. There was no immediate intention to be legally bound pending a formal long-form agreement.

15. The Court of Appeal (Popplewell LJ giving the lead judgment, with Arnold LJ and Newey LJ agreeing) dismissed the appeal and upheld the first instance Judge’s findings on contract formation (and the terms of the injunction).
16. The Court of Appeal’s key reasonings and the key takeaway can be summarised as follows:
    
    a. The whole course of dealings. The WhatsApp messages, calls, and email sequences provided a series of exchanges that the Court was required to take into account in their totality. The ‘offer’ and ‘agreement’ exchanges did not exist in isolation, and the entirety of the correspondence provided helpful context to interpret the key emails.
    
    b. Context matters. The urgency of the tournament and industry practice suggested that the use of such informal correspondence was not uncommon. It did not suggest that there was any lesser intention create legal relations. Coupang’s use of email after weeks of WhatsApp messages was interpreted as a formalising step. It demonstrated that Coupang was eager to formally lay its cards on the in manner that displayed the hallmarks of a legally binding offer.
    
    c. Offer and acceptance were sufficiently clear and final. The 27 February email was an offer, and the 3 March acceptance unequivocally accepted it. Even though DAZN’s acceptance email expressed that “we will start contract drafting and hope to share the draft for your agreement soon” the parties had already indicated which terms they regarded as essential (i.e. rights, territory, co-exclusivity and price). The expectation that a long-form agreement would later be drawn up to formalise the remaining details did not undermine the deal that had been reached. Moreover, the time-sensitive nature of the tournament reinforced the parties’ intention to be immediately bound, without waiting for a fully executed contract.
    
    d. Commercial language can be imperfect. The Court of Appeal emphasised that businesspeople frequently negotiate in “impressionistic” terms, rather than with legalistic precision. The fact that the language of the ‘offer’ and ‘acceptance’ did not follow the form lawyers might advise did not preclude the existence of an agreement. The law will give effect to the sense of the deal rather than dissect imperfect phrasing. The Court also noted that Mr Kim, the offer-maker, was not a native English speaker, further highlighting the need to interpret the communications in context.
    
    e. Subsequent conduct can confirm intent. References to the deal being “finalised,” the exchange of congratulatory messages, and DAZN’s instruction to begin marketing were all inconsistent with its later denial of a contract, providing strong evidence of intent. Additionally, DAZN’s acknowledgment of Coupang’s threatened claim indicated an awareness that a binding legal agreement existed, one that Coupang could legitimately seek to enforce.

(B) AGREEMENTS TO AGREE

(i) Summary of Relevant Law

17. There will be numerous circumstances where the interests of commercial parties will be best served by avoiding rigid, long term agreements; for example, in a volatile market in which price frequently, and significantly, fluctuates. In such circumstances, there is likely to be a real attraction to contracting parties in leaving some aspects of the contract to be negotiated and agreed at a later date.
18. However, this approach will no doubt ring alarm bells for most practitioners. As Lord Buckmaster put it in the leading case of May & Butcher v R [1934] 2 KB 17 (HL):

It has long been a well recognized principle of contract law that an agreement between two parties to enter into an agreement in which some critical part of the contract matter is left undetermined is no contract at all.

19. In May & Butcher, the House of Lords refused to uphold a contract for sale where the parties had agreed that the price would be “agreed upon from time to time”.
20. As with all general rules, there are of course nuances. In Hillas & Co v Arcos Limited [1932] 147 LT 503 (HL), the House of Lords said that where both parties intended to make a contract and thought they had done so, it was the “duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects”. As such, it was found that the court may imply a term where the “the contractual intention was clear, but the contract is silent on some detail”. Following implication of the term, the agreement would no longer fall foul of being simply an agreement to agree.
21. The matter was considered and summarised in BJ Aviation Ltd v Pool Aviation Ltd [2002] EWCA Civ 163. The decision provides five key principles to be applied which are paraphrased below:
    
    a. Each case must be decided on its own facts. Decisions in respect of other agreements are unlikely to be of assistance.
    
    b. If (on a proper construction of the agreement), the parties have left essential matters to be agreed in the future there is no contract to be enforced.
    
    c. There is no obligation to negotiate in good faith about the matter that remains to be agreed.
    
    d. However, where the Court is satisfied that the parties intended their bargain to be enforceable, it will strive to give effect to that intention. To do so, the Court may imply a term that the matter was to be determined by the criteria of fairness or reasonableness. The Court may only do so if it is not inconsistent with the terms that have actually been agreed ie. where it is clear that the parties really did intend to leave the matter to future agreement.
    
    e. The agreement does not fail because the parties have not provided machinery to determine the criteria of reasonableness or fairness. The Court may provide its own machinery.

(ii) Case Law Update: KSY Juice Blends UK Limited v Citrosuco GmbH [2025] EWCA Civ 760

22. In this case, the contract concerned the supply of orange juice pulp wash. Orange juice pulp wash can be used in some countries to make a reconstituted drink similar to orange juice or as a base for orange flavoured drinks. It was common ground that the market was volatile, and the price of orange juice pulp wash could vary considerably.
23. By a contract entered in 2018, KSY Juice Blends UK Limited (“KSY”) agreed to supply Citrosuco GmbH (“Citrosuco”) orange juice pulp wash for a period of three years commencing in January 2019 (“the Contract”).
24. KSY agreed to provide Citrosuco with a minimum amount of 1200 metric tonnes (MT):
    
    a. In respect of 400MT of this amount, the Contract provided a formula for calculating the price.
    
    b. In respect of the price of the remaining 800MT, the Contract stated: “open price to be fixed latest by December of the previous year”.

25. It was uncontroversial that the Contract was valid and enforceable in respect of the amount of 400MT. However, by late 2018, Citrosuco’s need for the fruit pulp wash had reduced and the Contract was a bad bargain for it. Citrosuco contended that the agreement was unenforceable in respect of the remaining amount of 800MT.
26. At first instance, the High Court agreed with Citrosuco’s analysis and dismissed the majority of KSY’s claim for damages for price or alternatively breach of contract. The Court of Appeal however, allowed KSY’s appeal.
27. The Court of Appeal found that it was an implied term of the contract that on the remaining 800MT, the price would be a reasonable or market price. Therefore, this part of the Contract did not fall foul of being an agreement to agree.
28. Lord Justice Zacaroli found that the case stood, “firmly in the territory of the contracts which a court will strive to uphold”. The intention of the parties was clearly to reach a binding agreement as to the full quantity of 1200MT of orange juice pulp wash and the parties had provided mechanisms as to most of the terms of the Contract. In the case of pricing, there was an obvious incentive to leave flexibility as to pricing.
29. The following key points were elucidated:
    
    a. Consistency of an implied term with the agreement to agree. Although it was clearly envisaged that the parties would seek to reach agreement on price, this did not prevent an implied term that the price would be a reasonable or market price in the absence of reaching agreement.
    
    b. The machinery to ascertain a reasonable market price. Difficulty in ascertaining a reasonable market price could be a compelling reason why the Court could not imply such a term. Where the parties knew (or ought to reasonably have known) that there was no readily objective standard by which a reasonable price could be ascertained, then they could not have reasonably intended that price would be set in this way. They must have intended they were free to negotiate. However, in this case, the Court of Appeal found that on the evidence there was a generally accepted method for identifying the price of fruit pulp wash.
    
    c. Arbitration clauses. The presence of an arbitration clause in a contract may assist the Court in the Court finding sufficient certainty in the agreement. However, the presence or absence of an arbitration clause is not determinative.

30. Section 8(2) Sale of Goods Act 1979. As the outstanding term related to price, the Court of Appeal also gave consideration to section 8(2) of the Sale of Goods Act 1979 (“the 1979 Act”). Section 8(2) of the 1979 Act provides that, where a price is not determined by the contract, the buyer must pay a reasonable price. In May & Butcher, the House of Lords found that section 8 of the Sale of Goods Act 1893 (which is materially similar to the terms of section 8 of the 1979 Act), could not apply as the contract was not silent on price. Here, Citrosuco argued, not only that section 8(2) of the 1979 Act could not apply as the Contract was not silent on price, but also went further. Citrosuco argued that, if section 8(2) of the 1979 Act did not apply, it would be wrong for an identical term should not be implied at common law. The Court of Appeal dismissed this argument and found that section 8(2) of the 1979 Act did not prevent the implication of a term as to the reasonable market price. The question of whether the contract provides for the price is determined by reference to both the express and implied terms of the contract.

CONCLUSIONS

31. Both of these recent decisions provide a useful reminder of the principle that the Courts will strive to uphold commercial agreements, provided there is evidence of intention to create legal relations and sufficiently certain terms.
32. DAZN v Coupang illustrates that even informal communications can establish a binding contract when the essential terms are agreed, and the surrounding context demonstrates an immediate intention to be bound. This is a particularly useful decision for practitioners dealing with informal agreements arising from digital communications, such as WhatsApp. The Court emphasised that the expectation of a subsequent long-form agreement or draft contract does not negate the binding effect of an agreed deal, so long as the parties have not expressly reserved their position with wording such as ‘subject to contract.’ Subsequent conduct confirming the agreement can further point towards contractual formation.
33. On the other hand, KSY Juice Blends v Citrosuco highlights the distinction between an unenforceable ‘agreement to agree’ and a contract in which the Court can imply a term as to how the outstanding matters should be determined. The case demonstrates that the Court will imply terms, such as a reasonable market price, where the contractual intention is clear and the matter can be objectively determined. The presence or absence of an arbitration clause, or the potential difficulty in fixing terms, does not automatically render a contract unenforceable.
34. Taken together, these recent judgments underscore that commercial reality, context, and the objective intention of the parties remain paramount to contractual formation in the modern world. The Courts continue to interpret negotiations pragmatically, prioritising substance over form, and will strive to uphold agreements wherever possible. For practitioners, these decisions serve as a reminder to clearly identify essential terms and to communicate intentions from an early stage. Yet even where the path to agreement is informal, the language imperfectly documented and its terms partially unrefined, the law will give effect to a bargain once shown to have been reached.

Written by Eloise Marriott and Angus Thomas

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. Please also note that this article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.