The justification for take-up or payment clauses is based on the nature of the energy projects, as the investments required for the research, design and construction of such projects are considerable. In this context, the conclusion of long-term contracts between a supplier and a customer guarantees suppliers a guaranteed income, more or less predefined conditions. In this sense, these clauses act as a risk-sharing mechanism between the supplier who has invested considerable funds, often financed by banks and who therefore seek to guarantee a guaranteed income, and the customer who seeks security of supply and a certain flexibility of prices. It also follows from the above that over-the-counter or payment clauses act as an implicit guarantee for the financing of a project by banks, with take-or-pay liabilities often being the main guarantee. Such contracts are also useful for the buyer, since there is no obligation to receive the delivery. Suppose that company A finds in the case below another buyer who offers a lower price than company B. In this case, Company A will use the take or pay contract to terminate the contract and pay the fine. In view of the compensatory nature of private or payment clauses, the general principles of damages and, in particular, limitations on the extent of the damage apply, such as the obligation to take into account the damage suffered by the victim (in this case the demanding seller) and the profit resulting from the injurious event. It is important that the take-or-paying buyer is not in breach of the contract or in default if he does not name the top quantity in the corresponding year or does not do so. Often, a buyer has the right to name zero deliveries in a year, which would not be an offense or delay. Instead, the difference between the quantity actually taken by the buyer that year and the corresponding quantity of TOP forms the basis of a deficit quantity for which the buyer is required to make an agreed or payment payment to the seller at the end of that year.

A take or pay contract is a rule that structures negotiations between companies and their suppliers. In this type of contract, either the company takes the product from the supplier or pays a penalty to the supplier. For every product the company takes, they agree to pay a certain price to the supplier, say $50 a tonne. In addition, within the limit of an agreed ceiling, the company must also pay the supplier for products that he does not take. That penalty price is lower, say $40 a tonne. One of the fundamental principles of Directive 2009/73/EC[8] is in particular the possibility of allowing third parties access to the natural gas transmission system, i.e. any supplier may have access to it. In this context, derogations from this rule may be requested where another natural gas company that already has access to the network demonstrates that it is experiencing economic and financial difficulties as a result of the take or pay clause it has received[9].

The advantages of the take or pay contract are listed below: the damages available to the seller if the buyer does not use the goods may be unspecified general damages or may consist of an agreed lump sum compensation, but in most cases it is not the total contract price for the quantity not withdrawn. In the event of recovery of general damages, the seller is often required to take steps to reduce its losses, which may require a seller to resell the goods not taken by the buyer and to record the proceeds of the resale ahead of the seller`s claim for damages. In a take or pay contract, the seller is not bound by such an obligation to reduce or resell, and if he manages to resell the quantity not taken by the buyer, the seller has the right to withhold the entire proceeds of the sale and he is not required to account for this product to the buyer. . . .

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j$k1974376j$kThe justification for take-up or payment clauses is based on the nature of the energy projects, as the investments required for the research, design and construction of such projects are considerable. In this context, the conclusion of long-term contracts between a supplier and a customer guarantees suppliers a guaranteed...