BUSL6222 LU7
BUSL6222 LU7 – Breach of
Contract
Chapter 10 – Forms of breach of contract
10.1 Breach due to positive malperformance by the debtor
This is the most common type of breach. It happens when the debtor performs,
but not as agreed in the contract.
Elements that apply to this form of breach:
- The debtor did perform, but the performance was defective, incomplete,
or improper.
- The performance goes against the contract terms.
- There is no lawful reason (like impossibility) for the incorrect performance.
Examples:
- A painter was hired to paint a room nautical blue but painted it baby blue
instead.
- An employee took a job with a client of their former employer, breaking a
restraint of trade agreement.
10.2 Breach due to a delay in performance by the debtor
This breach happens when the debtor delays performance beyond the agreed
time.
Elements that apply to this form of breach:
- The debtor failed to perform on time, without a valid reason.
- The delay has no lawful justification -unless caused by something beyond
their control (like supervening impossibility).
- The performance must still be possible -if it’s no longer possible, it
becomes breach due to impossibility.
- The performance must be due and enforceable -meaning the time for
performance has arrived.
- If the contract sets a clear deadline, the debtor is in breach
automatically when they miss it.
- If no time is set, the creditor must demand performance by a
reasonable deadline before breach occurs.
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, BUSL6222 LU7
10.3 Breach due to a delay in performance by the creditor (Mora
Creditoris)
This breach happens when the creditor delays or fails to cooperate, making it
impossible for the debtor to perform on time.
Elements that apply to this form of breach:
- The creditor’s lack of cooperation prevents the debtor from performing
-for example, not giving access or not accepting delivery.
- There is no lawful reason for the delay -if the delay is due to something
beyond the creditor’s control (like flooding or a natural disaster), it’s
not a breach.
- The debtor’s performance must still be possible -if the creditor’s delay
makes performance impossible, it becomes breach due to impossibility.
- The creditor’s duty to cooperate must be due -meaning the agreed
time for cooperation has arrived, or the debtor has demanded
cooperation by a set date.
10.4 Breach due to impossibility
A breach due to impossibility happens when one party makes performance
impossible through their own fault and without a lawful reason.
Two types:
1. The debtor makes their own performance impossible.
2. The creditor makes it impossible for the debtor to perform.
Important distinctions:
- Before the contract: If performance was already impossible, the contract is
void.
- After the contract (no one’s fault): If a natural disaster or other event makes
performance impossible, it’s supervening impossibility, not breach.
- After the contract (someone’s fault): If one party’s actions make performance
impossible, it’s breach due to impossibility.
Below are the common elements that apply to the two sub-categories of breach
of contract due to impossibility:
- These two sub-forms of breach can occur at any time before performance –
either before performance becomes due and enforceable, or after the
performance becomes due and enforceable.
- Performance must be objectively or subjectively impossible due to the fault of
the parties.
- Performance is impossible due to the blameworthy conduct of the party in
question.
- There is no lawful justification.
2
BUSL6222 LU7 – Breach of
Contract
Chapter 10 – Forms of breach of contract
10.1 Breach due to positive malperformance by the debtor
This is the most common type of breach. It happens when the debtor performs,
but not as agreed in the contract.
Elements that apply to this form of breach:
- The debtor did perform, but the performance was defective, incomplete,
or improper.
- The performance goes against the contract terms.
- There is no lawful reason (like impossibility) for the incorrect performance.
Examples:
- A painter was hired to paint a room nautical blue but painted it baby blue
instead.
- An employee took a job with a client of their former employer, breaking a
restraint of trade agreement.
10.2 Breach due to a delay in performance by the debtor
This breach happens when the debtor delays performance beyond the agreed
time.
Elements that apply to this form of breach:
- The debtor failed to perform on time, without a valid reason.
- The delay has no lawful justification -unless caused by something beyond
their control (like supervening impossibility).
- The performance must still be possible -if it’s no longer possible, it
becomes breach due to impossibility.
- The performance must be due and enforceable -meaning the time for
performance has arrived.
- If the contract sets a clear deadline, the debtor is in breach
automatically when they miss it.
- If no time is set, the creditor must demand performance by a
reasonable deadline before breach occurs.
1
, BUSL6222 LU7
10.3 Breach due to a delay in performance by the creditor (Mora
Creditoris)
This breach happens when the creditor delays or fails to cooperate, making it
impossible for the debtor to perform on time.
Elements that apply to this form of breach:
- The creditor’s lack of cooperation prevents the debtor from performing
-for example, not giving access or not accepting delivery.
- There is no lawful reason for the delay -if the delay is due to something
beyond the creditor’s control (like flooding or a natural disaster), it’s
not a breach.
- The debtor’s performance must still be possible -if the creditor’s delay
makes performance impossible, it becomes breach due to impossibility.
- The creditor’s duty to cooperate must be due -meaning the agreed
time for cooperation has arrived, or the debtor has demanded
cooperation by a set date.
10.4 Breach due to impossibility
A breach due to impossibility happens when one party makes performance
impossible through their own fault and without a lawful reason.
Two types:
1. The debtor makes their own performance impossible.
2. The creditor makes it impossible for the debtor to perform.
Important distinctions:
- Before the contract: If performance was already impossible, the contract is
void.
- After the contract (no one’s fault): If a natural disaster or other event makes
performance impossible, it’s supervening impossibility, not breach.
- After the contract (someone’s fault): If one party’s actions make performance
impossible, it’s breach due to impossibility.
Below are the common elements that apply to the two sub-categories of breach
of contract due to impossibility:
- These two sub-forms of breach can occur at any time before performance –
either before performance becomes due and enforceable, or after the
performance becomes due and enforceable.
- Performance must be objectively or subjectively impossible due to the fault of
the parties.
- Performance is impossible due to the blameworthy conduct of the party in
question.
- There is no lawful justification.
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