Chapter 4
Breach of contract and termination of contractual relationship
BoC occurs when one/both parties fail to honor contractual obligations, do not perform timeously, do not
make performance, refuse to act or render performance impossible.
1.Forms of breach (5)
Delay by debtor (mora debitoris)
Debtor= in mora if does not perform in time. BoC not only because of late performance.
Requirements:
a) Performance is still possible
If performance is impossible w/out any fault- no BoC
b) Debtor fails to perform timeously
Most contract specify time/date. Where a time/date or method was specified, the debtor is in mora
if he does not perform at such time.
Mora ex re – time was agreed upon and debtor fail to perform. No demand from creditor is
necessary as the agreement is already the demand.
Mora ex persona- did not agree on time/place/method, creditor must demand performance, specify
time which is reasonable. After reasonable time lapses debtor is mora ex re.
c) Performance already due and enforceable
Performance is due and enforceable if the creditor has a personal right to claim from the debtor and
the debtor does not have any valid defence to such a claim.
Exception non adimpleti contractus – debtor can withhold performance until creditor makes counter-
performance.
d) Fault is NOT a requirement
If they debtors cannot perform due to circumstances out of his control – no BoC
Where a debtor guaranteed performance, the absence of fault will not prevent in mora
Consequences of mora debitoris:
BoC perpetuates the legal obligation between the debtor and creditor.
Debtor bears risk of performance becoming impossible while in mora and will not be excused if it is
impossible.
Delay by creditor (mora creditoris)
Creditor is in mora if he, by his own fault, fails to accept performance through lack of co-operation
makes performance impossible. He is in mora and guilty of BoC
Requirements:
a) Performance is still possible
If performance have become impossible w/out any parties being at fault, creditor cannot be in
mora. Through his lack of co-operation rendered performance impossible, he is in mora and
guilty of BoC
b) Creditor delays performance
Mora creditoris only possible where creditor has the duty to co-operate in order for the debtor
to perform his obligations. Creditor cannot be in mora if his co-operation is not necessary.
c) Permormance is due and enforceable
Breach of contract and termination of contractual relationship
BoC occurs when one/both parties fail to honor contractual obligations, do not perform timeously, do not
make performance, refuse to act or render performance impossible.
1.Forms of breach (5)
Delay by debtor (mora debitoris)
Debtor= in mora if does not perform in time. BoC not only because of late performance.
Requirements:
a) Performance is still possible
If performance is impossible w/out any fault- no BoC
b) Debtor fails to perform timeously
Most contract specify time/date. Where a time/date or method was specified, the debtor is in mora
if he does not perform at such time.
Mora ex re – time was agreed upon and debtor fail to perform. No demand from creditor is
necessary as the agreement is already the demand.
Mora ex persona- did not agree on time/place/method, creditor must demand performance, specify
time which is reasonable. After reasonable time lapses debtor is mora ex re.
c) Performance already due and enforceable
Performance is due and enforceable if the creditor has a personal right to claim from the debtor and
the debtor does not have any valid defence to such a claim.
Exception non adimpleti contractus – debtor can withhold performance until creditor makes counter-
performance.
d) Fault is NOT a requirement
If they debtors cannot perform due to circumstances out of his control – no BoC
Where a debtor guaranteed performance, the absence of fault will not prevent in mora
Consequences of mora debitoris:
BoC perpetuates the legal obligation between the debtor and creditor.
Debtor bears risk of performance becoming impossible while in mora and will not be excused if it is
impossible.
Delay by creditor (mora creditoris)
Creditor is in mora if he, by his own fault, fails to accept performance through lack of co-operation
makes performance impossible. He is in mora and guilty of BoC
Requirements:
a) Performance is still possible
If performance have become impossible w/out any parties being at fault, creditor cannot be in
mora. Through his lack of co-operation rendered performance impossible, he is in mora and
guilty of BoC
b) Creditor delays performance
Mora creditoris only possible where creditor has the duty to co-operate in order for the debtor
to perform his obligations. Creditor cannot be in mora if his co-operation is not necessary.
c) Permormance is due and enforceable
