11. Breach of Contract
Repudiation
- Occurs where person creates objective impression that he is not going to
perform in accordance with contract.
- By denying validity of contract/disputing its terms
- Resiling from contract w/out valid grounds
- Giving insufficient notice of cancellation
- Notifying co-contractant that you cannot perform.
- Repudiation may take place both before/after time when performance must
take place.
- Question whether it is reasonable in circumstances to infer from his conduct
that he will not comply.
Prevention of Performance
- Party makes his/her own performance/other party impossible it will constitute
breach of contract
- Must be distinguished from impossibility of performance.
- Both objective impossibility of performance at conclusion of contract &
objective impossibility of performance after conclusion don’t constitute breach
- Performance can be made impossible before/after time for performance.
- Both objective & subjective prevention constitute breach
- Fault will be required, but person who prevented performance will be deemed
to have fault unless he proves otherwise.
Positive Malperformance
- Takes place where performance of debtor doesn’t meet standards for
performance as set out in contract/does something undertaken not to do.
- Fault probably also not requirement although there is no case law
- Normally presumption that fault present when malperformance took place.
Mora Debitoris
- Takes place where person delays timeous performance but still performs,
albeit late. (mora = delay; debitoris = of the debtor)
Repudiation
- Occurs where person creates objective impression that he is not going to
perform in accordance with contract.
- By denying validity of contract/disputing its terms
- Resiling from contract w/out valid grounds
- Giving insufficient notice of cancellation
- Notifying co-contractant that you cannot perform.
- Repudiation may take place both before/after time when performance must
take place.
- Question whether it is reasonable in circumstances to infer from his conduct
that he will not comply.
Prevention of Performance
- Party makes his/her own performance/other party impossible it will constitute
breach of contract
- Must be distinguished from impossibility of performance.
- Both objective impossibility of performance at conclusion of contract &
objective impossibility of performance after conclusion don’t constitute breach
- Performance can be made impossible before/after time for performance.
- Both objective & subjective prevention constitute breach
- Fault will be required, but person who prevented performance will be deemed
to have fault unless he proves otherwise.
Positive Malperformance
- Takes place where performance of debtor doesn’t meet standards for
performance as set out in contract/does something undertaken not to do.
- Fault probably also not requirement although there is no case law
- Normally presumption that fault present when malperformance took place.
Mora Debitoris
- Takes place where person delays timeous performance but still performs,
albeit late. (mora = delay; debitoris = of the debtor)
