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Basic Principles: pp107 - 119
Breach of contract
Breach of contract may take 5 forms: ± Mora debitoris ± Mora creditoris ± Repudiation ± Positive malperformance ± Prevention of performance
Occurs when performance is possible but debtor, who is aware that performance is required, fails to perform on time. Requirements for a debtor to be in mora: 1. Performance due and possible
± Date for performance stipulated in contract (gives rise to mora ex re)
4 .Mora debitoris contd« ± No date stipulated: demand made by creditor (interpellatio) ± gives rise to mora ex persona Demand made by creditor must give debtor a reasonable time to perform. Obligation must be enforceable ± Creditor must have valid right to performance and debtor must have no defence for non-performance. 2.
Performance is due ± If no time for performance has been agreed upon. 5 . the creditor must be given reasonable notice to accept performance. A creditor who obstructs performance is in mora if: 1.Mora creditoris Occurs when creditor delays in giving assistance to debtor where this is required for him to perform.
Mora creditoris contd« 2. who must be given opportunity to accept it. The creditor¶s mora does not excuse the debtor from performing When the creditor is in mora. she cannot argue that debtor¶s failure to perform was breach of contract. 6 . The debtor tenders proper performance ± Debtor must tender performance in terms of contract to creditor.
Positive malperformance Occurs when debtor performs. (Positive obligation) ± Debtor does something which contract prohibits him from doing. 2 forms of positive malperformance exist: ± Debtor¶s performance is incomplete or defective. but performance is defective or contrary to terms of the contract. (Negative obligation) 7 .
who has no lawful excuse not to perform. material breach by other party. Repudiation which occurs before due date for performance = ³anticipatory breach´ 8 . ± Eg.Repudiation Occurs when a party. misrepresentation. a party may lawfully repudiate. indicates an intention not to perform some/ all duties under a contract. Under certain circs. duress.
Where repudiation is anticipatory. 9 . or wait for performance date.Repudiation contd« For repudiation the debtor must notify the creditor that he will not be performing under the contract. ± The debtor¶s intention may be inferred from the facts. the creditor may seek remedies for breach immediately.
10 .Prevention of performance Occurs when there is an inability to perform as a result of the actions of one of the parties. May result from the actions of the creditor or the debtor.
Remedies for breach of contract The major remedies for breach of contract are: ± Specific performance ± Cancellation ± Damages In addition a party may ask for a ³declaration of rights´. 11 .
Declaration of rights Where there is confusion about a right or obligation in a contract. either party may apply to the High Court for an interpretation of that right or obligation. A party who seeks an interdict or specific performance will often seek a declaration of rights in addition. ± Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 12 .
Specific performance An order of specific performance compels the defaulting party to perform as promised under the contract. Interdict may be: ± Mandatory: requires a party to perform a particular act ± Prohibitory: prevents a party from performing a particular act. which prevents a breach/ threatened breach of contract. 13 . May be obtained via an interdict.
Specific performance contd« Interdicts: ± Eg. Court has discretion whether or not to grant an interdict. Applicant must show: ± A clear right ± An injury. 14 . well founded fear of injury ± No other remedy exists For our purposes an interdict will be regarded as a form of specific performance. Situation of successive sales.
. The court has a discretion whether to award S. and may refuse.P. however.General principles of specific performance Generally there is a right to specific performance. Particularly where: ± Performance is inappropriate (debtor is insolvent) ± Performance is contrary to public good ± It would be unduly harsh to expect the debtor to perform 15 .
Cases where S.P. may also be refused where cost of compliance to defendant is out of proportion to benefit to plaintiff.General principles contd« S.P. was refused: ± Haynes v King William¶s Town Municipality 1951 (2) SA 371 (A) ± York Timbers v Minister of Water Affairs and Forestry 2003 (4) SA 477 (T) 16 .
± Santos Professional Football Club v Igesund If a court refuses to award S. on a contract of personal service.General principles contd« In South Africa courts may enforce S. 17 .P.P.. the aggrieved party may still seek damages.
Where a plaintiff has not performed his reciprocal obligation and tries to claim S. where he is prepared to perform his own obligation. the defendant may raise the defence of the exceptio non adimpleti contractus.P.. a plaintiff may only claim S.P. ± Motor Racing Enterprises (Pty) Ltd v NPS (Electronics) Ltd 1996 (4) SA 950 (A) 18 .Specific performance and reciprocal obligations In a reciprocal contract.
P. has performed his reciprocal obligation. ± BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) 19 .The exceptio non adimpleti contractus If plaintiff claiming S.P. but the performance is defective and the defendant raises the exceptio defence. the courts may grant the plaintiff a reduced S.
).Cancellation Parties may at any time agree to cancel a contract.P. 20 . This may only be done: ± For material breach ± In terms of a cancellation clause Aggrieved party has election whether to cancel contract or uphold it (and claim S. Here we deal with unilateral cancellation.
± In some circumstances conduct may be sufficient notification of cancellation.Cancellation contd« If a party elects to cancel the contract. he must notify the defaulting party. Effect of cancellation: ± Contract ceases to exist ± Restitution must occur (to extent possible) 21 .
22 . in the circumstances of the contract it may be argued that he has waived the right to cancel. the aggrieved party does not cancel within a reasonable period of time.Cancellation contd« Cancellation may occur where: ± There has been a material breach ± There is a cancellation clause If on breach.
Contractual v delictual damages: ± Contract damages aim at making the contractual bargain available (positive) ± Delictual damages aim to compensate for loss suffered as a result of the wrongful conduct of another (negative) 23 .Damages Object of contractual damages is to put the aggrieved party in the (financial) position he would have been in had the contract been properly performed.
A delictual claim extends beyond this to non-financial loss. ± Van Wyk v Lewis 1924 AD 438 24 . Under certain circumstances a party may have a claim under contract or delict. such as injured feelings or pain and suffering.Contractual v delictual damages A contractual claim is limited to financial loss.
Sale of a painting guaranteed to be a Picasso 25 .Quantifying damages for breach of contract Court must determine what the financial position of the plaintiff would have been had there been no breach. Court will take into account loss which was foreseen by the parties: ± Gains not made ± Loss actually suffered Eg.
emotional) loss.Quantifying damages contd« In a claim for breach of contract one may not claim non-patrimonial (eg. Natal v Edouard 1990 (3) SA 581 (A) 26 . ± Jockie v Meyer 1945 AD 354 ± Administrator.
Quantifying damages contd« Two important principles limit the amount recoverable by a plaintiff for breach of contract: ± Damages must be reasonably foreseeable as likely to flow from the type of breach in question. (General damages) ± Damages which are usually regarded as too remote may be claimable if parties (in the circumstances of the contract) actually contemplated that type of harm occurring. 27 . (Special damages) The relevant time for determining whether a party foresaw or contemplated loss is the time of conclusion of the contract.
p 117) Victoria Laundry (Windsor) Ltd v Newman Industries Ltd  1 All ER 997 ± English case illustrating the contemplation principle 28 .Quantifying damages contd« Example cited by Kerr (Basic Principles.
29 . Onus is on defaulting party to prove innocent party failed to mitigate her loss.Quantifying damages contd« The innocent party must attempt to mitigate the loss. ± She must take reasonable steps to minimise her loss.
However. ± Parties may agree to vary this rule by contract A court may reduce a penalty which is out of proportion to loss suffered. damages may not be claimed in addition to the stipulated amount. Governed by Conventional Penalties Act 15 of 1962. in terms of the Act. 30 .Damages and penalty clauses Parties may agree on a penalty to be paid in the event of a breach of contract.
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