Kaya Borkowski
Law of Contract
Content
- Notes from textbook and class
- quizlet/flashcards at the end of each section
- Practice Question on damages that Prof did with us
- All semester 2 prescribed cases
- Semester 1 Topic 1 and 5 notes and cases that will
be examined
Breach of Contract
What are the types of breach?
- mora (debitoris and creditoris)
- positive malperformance
- repudiation
- prevention of performance
When the breach merits rescission, what will happen?
- uphold the contract or by claiming either specific performance or, in appropriate cases,
the financial equivalent of such performance
or
- rescind the contract, tender the return of the other party's performance and claim
restitution
Distribution of this document is illegal
, Kaya Borkowski
Mora Debitoris
- Delay on the part of the debtor
- Note: mora is continuous – One may claim damages for mora in the past, one can claim
where performance has been rectified, but was rendered late.
Requirements
- the debt must be due and enforceable
- the time for performance must have been fixed (and the debtor failed to perform by this
time)
- failure to perform on time must be without lawful excuse
-fault? In Scoin Trading v Bernstein 2011, the SCA held that fault is not a requirement for
mora
-the performance must still be possible. If it is impossible, it is rather prevention of
performance
What is mora ex re?
- Where the parties have expressly or impliedly stipulated a time for performance
- they are automatically placed in mora (ex re), without the need for any intervention by
the creditor.
- But for this result to follow, the stipulated time must be, not only certain to arrive, but
also certain as to when it will arrive
What is mora ex persona?
- Where no time for performance has been stipulated in the contract, expressly or by
implication
- debtor not automatically placed in mora
- the creditor must place the debtor in mora by issuing a letter of demand (either
extra-judicially, a letter, orally or judicial summons)
- The creditor need not allow a reasonable period to elapse after the conclusion of the
contract before demanding performance
Question: does the debtor automatically fall into mora when they receive the letter of
demand from the creditor?
- no
Distribution of this document is illegal
Law of Contract
Content
- Notes from textbook and class
- quizlet/flashcards at the end of each section
- Practice Question on damages that Prof did with us
- All semester 2 prescribed cases
- Semester 1 Topic 1 and 5 notes and cases that will
be examined
Breach of Contract
What are the types of breach?
- mora (debitoris and creditoris)
- positive malperformance
- repudiation
- prevention of performance
When the breach merits rescission, what will happen?
- uphold the contract or by claiming either specific performance or, in appropriate cases,
the financial equivalent of such performance
or
- rescind the contract, tender the return of the other party's performance and claim
restitution
Distribution of this document is illegal
, Kaya Borkowski
Mora Debitoris
- Delay on the part of the debtor
- Note: mora is continuous – One may claim damages for mora in the past, one can claim
where performance has been rectified, but was rendered late.
Requirements
- the debt must be due and enforceable
- the time for performance must have been fixed (and the debtor failed to perform by this
time)
- failure to perform on time must be without lawful excuse
-fault? In Scoin Trading v Bernstein 2011, the SCA held that fault is not a requirement for
mora
-the performance must still be possible. If it is impossible, it is rather prevention of
performance
What is mora ex re?
- Where the parties have expressly or impliedly stipulated a time for performance
- they are automatically placed in mora (ex re), without the need for any intervention by
the creditor.
- But for this result to follow, the stipulated time must be, not only certain to arrive, but
also certain as to when it will arrive
What is mora ex persona?
- Where no time for performance has been stipulated in the contract, expressly or by
implication
- debtor not automatically placed in mora
- the creditor must place the debtor in mora by issuing a letter of demand (either
extra-judicially, a letter, orally or judicial summons)
- The creditor need not allow a reasonable period to elapse after the conclusion of the
contract before demanding performance
Question: does the debtor automatically fall into mora when they receive the letter of
demand from the creditor?
- no
Distribution of this document is illegal
