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    Breach of Contract

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    Snr Berel Shepherd
    Breach of contract can occur through defective or non-performance of terms. There are different types of breach depending on whether terms are material or non-material. Material breach undermines the contract, while non-material breach does not. Breach is commonly distinguished as delay by the debtor, delay by the creditor, repudiation, prevention of performance, or positive malperformance. Each type has different requirements.

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    Breach of Contract

    Uploaded by

    Snr Berel Shepherd
    79 views10 pages
    Breach of contract can occur through defective or non-performance of terms. There are different types of breach depending on whether terms are material or non-material. Material breach undermines the contract, while non-material breach does not. Breach is commonly distinguished as delay by the debtor, delay by the creditor, repudiation, prevention of performance, or positive malperformance. Each type has different requirements.

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    Breach of contract can occur through defective or non-performance of terms. There are different types of breach depending on whether terms are material or non-material. Material breach undermines the contract, while non-material breach does not. Breach is commonly distinguished as delay by the debtor, delay by the creditor, repudiation, prevention of performance, or positive malperformance. Each type has different requirements.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    79 views10 pages

    Breach of Contract

    Uploaded by

    Snr Berel Shepherd
    Breach of contract can occur through defective or non-performance of terms. There are different types of breach depending on whether terms are material or non-material. Material breach undermines the contract, while non-material breach does not. Breach is commonly distinguished as delay by the debtor, delay by the creditor, repudiation, prevention of performance, or positive malperformance. Each type has different requirements.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    of 10

    Breach of contract

    Breach of contract
     Breach of contract occurs when there is
    defective performance or non performance of
    one or more terms of the contract;
     Such breach of contract can occur in advance

    (anticipatory breach) where there is unlawful


    repudiation before the appointed time of
    performance;
     The remedies of the parties will differ

    depending on whether the breach is of a


    material term or non material term;
     Material breach
     This is sometimes called fundamental breach. This is a
    breach that goes to the root of the contract, the analysis i.e.
    is a factual one. Is the breach that had occurred is so
    serious that it undermines the contract. And the innocent
    party is not reasonably expected to continue with the
    contract. It amounts to non-performance. In terms of
    drafting a contract, parties tend to say or to provide that any
    breach if not remedied within 14 days will give the innocent
    party time to cancel the contract. The purpose of such
    provision is to obviate the need to proof that the breach was
    fundamental or serious. Spies v Lombard 1950(3) SA 469 ;
    Universal Cargo Carriers v Citati [1957] 2 QB 401 ,
    Breach of contract
     Breach of contract is commonly distinguished
    into 5 forms
    i. Mora debitoris (delay by the debtor)
    ii. Mora creditoris (delay by the creditor)
    iii. Repudiation
    iv. Prevention of performance
    v. Positive malperformance
    i. Mora debitoris (delay by the
    Debtor)
     This refers to a delay by the debtor- a wrongful
    failure to perform a promise timeously or timeously
    tenders performance that is lawfully rejected by the
    creditor.
     Mora can only occur in respect of positive

    obligations;
     The debtor would not have rendered any

    performance at all;
     Delay is a form of breach if time is of the essence,

    and delayed perfomance can be rendered


    meaningless. E.g. a wedding photographer, who
    turns up on the wrong day.
    Requirements for mora debitoris
    a. Performance must remain possible
    nothwithstanding the delay
    b. The debt must be due and enforceable;
    c. The delay must be wrongful;
    d. The delay must be due to the fault of the
    debtor
    ii. Mora creditoris (negative
    malperformance by the creditor
     This relates to the creditors failure to render the
    duty to cooperate at the time of execution;
    Requirements
    a. The debt must have been capable of being
    fulfilled;
    b. The debtor must have made a proper tender of
    performance;
    c. The creditor must have failed to receive the
    performance tendered;
    d. The delay must have been due to the fault of the
    creditor
    iii. Positive malperformance
     Positive malperformance occurs where a party
    to a contract does not comply with the terms,
    either rendering performance which does not
    comply with the terms of the contract or by
    doing something which he undertook not to do;
     Rendering performance which is defective,
    inadequate or incomplete to the extent that it
    does not comply with the terms of the contract,
    can only occur where actual performance takes
    place.
    Repudiation by the debtor
     Repudiation involves wrongful conduct;
     a party who denies the existance of a valid contract

    repudiates the contract.


     Repudiation can exist where a party disputes the

    terms of the contract, where he tries to resile from


    the contract, or gives insufficient notice of
    cancellation, where he notifies the other party that
    he cannot perform or where he tenders defective
    performance as complete and proper performance.
     Repudiation, unlike positive malperformance takes

    place before actual performance


    Prevention of performance by a
    creditor
     Prevention of performance by a creditor takes
    place where he makes it absolutely
    impossible for himself to render the required
    cooperation to the debtor or where he makes
    performance by the debtor absolutely
    impossible;
    e.g. asking a painter to paint the house and
    then burning the house.

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