Recently, in Bear Stearns Bank Plc v. Forum Global Equity Ltd ,2 the rule was applied to the market in distressed corporate debt and we may expect it to develop into other markets provided they are a reliable indicator of the value of the opportunity lost by the breach. Sometimes, however, it is not appropriate to take the precise date of breach as the time to crystallize damages by reference to what the market was then doing, because it may not be reasonable to expect the injured party to have entered the market at that time. For example, the contract breaker may promise imminent performance or request that the injured party have its claim lie dormant for a period, there may be a dispute over who has property in goods, the injured party may be making reasonable attempts to have the contract completed and, in some instances, purchases or sales must be undertaken gradually to avoid market distortion. These circumstances will mean that the date of assessment is and ought to be delayed. They may even justify delay right up until the date of judgment.

The justification for the “available market” rule is partially to do with causation: if the injured party does not go into the market when it would be reasonable to do so, the breach may provide the occasion for the loss but supervening damage beyond that notional time of crystallization will not be taken to have arisen out of the transaction. But it also depends on the principle of mitigation: further avoidable loss will not be recoverable. It is in this context that Bear Stearns is of interest. The normal rule is that an injured party is only put in jeopardy by a failure to mitigate from the time he elects to accept that any repudiatory (including any anticipatory) breach has put an end to the contract.3 In Bear Stearns the

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