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In the present case the deposit has not been paid but the right to payment of it has accrued before the contract was terminated. The question therefore is not whether a deposit which has been paid can be recovered by the buyer but whether payment of the deposit can be enforced by the seller, notwithstanding the termination of the contract. It is a principle of the substantive law of contract that accrued rights are not lost by reason of the subsequent termination of the contract consequent upon a repudiation of the contract…. The termination operates prospectively, not retrospectively. This would suggest that deposits which have fallen due for payment remain payable notwithstanding that the contract was terminated after the deposit fell due. This has indeed long been recognised to be the case [references quoted]… ; it follows that had clause 2 of the MOA stood alone, the Appellant Sellers would have been able to recover the deposit in debt.”
The question was, therefore, whether clause 13 of the MOA had the effect of depriving the Sellers of their right to claim the deposit which had fallen due before the MOA was terminated so that, on the true construction of the MOA as a whole, the deposit did not fall due unconditionally. [Emphasis added] But, the judge said, the right to a deposit is valuable and, as it had long been recognised that a deposit remains payable, notwithstanding the termination of the contract, the Court would expect “that if the parties intended to exclude such right, they would do so by the use of clear words.”
The judge continued:
