CHAPTER 11

(1) EXECUTION OF
CONTRACT

DETERMINED BY
LEGAL
NATURE &
SERIOUNESS OF
REMEDIES AT
BREACH OF
CONTRACT &
DISPOSAL OF (2) CANCELLATION
OF CONTRACT
TERMS OF
CONTRACT
INNOCENT
PARTY

(3) DAMAGES
 OBVIOUS REMEDY

(3) PROHIBITORY
3 X ORDERS:
INTERDICT

EXECUTION
OF
CONTRACT

(2) ORDER FOR (1) ORDER FOR

REDUCED SPECIFIC
PERFORMANCE PERFORMANCE
 COURT ORDER -
COMMANDS
CONTRACTING
PERTY TO RENDER
PERFORMANCE

COURT REFUSE WILL NOT BE

ORDER: ODER ORDERED AGAINST
COMPRISE INJUSTICE PERSON - ESTATE
/ INEQUITABLE SEQUESTRATED -
UNDER ALL MAY PREJUDICE
CIRCUMSTANCES OTHER CREDITORS

ORDERS FOR
SPECIFIC
PERFORMANCE

COURT REFUSE
ORDER:
CANNOT BE
PERFORMANCE
GRANTED WHERE
AFFECT
PERFORMANCE
DEFENDANT
NOT POSSIBLE
UNREASONABLY
HARSLY

INNOCENT PERTY
CAN CLAIM
DAMAGES IN LIEU
OF PERFORMANCE
 PARTY
WHAT REDUCED RENDERED
CONTRACT PRICE PERFORMANCE
- DEFECTIVE / INTENTION OF
SHOULD BE -
INCOMPLETE PARTIES =
CONTRACT PRICE
DECISIVE
LESS AMOUNT
FACTOR IN
REQUIRED TO BRING
DETERMINING
PERFORMANCE UP
RECIPROCITY
TO REQUIRED
STANDARD
RECIPROCITY -
(2) CIRCUMSANCES PLAINTIFF CAN
ARE SUCH THAT CLAIM
WOULD BE DEFENDANT'S
EQUITABLE FOR PERFORMANCE
COURT TO EXCERCISE ONLY IF HE
DISCRETION IN PERFORMED /
FAVOUR OF WILLING TO
GRANTING SUCH ORDERS FOR PERFORM
ORDER REDUCED
PERFORMANCE
EXCEPTIO NON
ADIMPLENTI
CONTRACTUS -
(1) DEFENDENT DEFENCE OF
= USING INCOMPLETE
DEFECTIVE CONTRACT
PERFOMRANCE

EXCEPTIO NOT
AVIALBELE TO
COURT WILL DEFENDANT
GRANT REDUCED WHERE PLINTIFF
PERFORMANCE IF EXCEPTIO NOT
AVAILABLE HAS CANCELLED
PROVED: CONTRACT
WHERE
PLAINTIFF DOES
NOT HAVE TO
PERFORM
 SHOULD PARTY DO
SOMETHING MAY NOT
DO ITO CONTRACT /
THREATEN TO ACT IN
MANNER - OTHER
PARTY MAY APPLY FOR
INTERDICT TO END
PREVENT CONTRACT

PROHIBITORY
INTERDICTS

EXAMPLE:
RESTRAINT OF
TRADE
 ABNORMAL
REMEDY FOR
BREACH OF
CONTRACT

NO CANCELLATION
CLAUSE - ONLY PARTIES DO NOT
ENTITLED TO CANCEL ACCOMPLISH WHAT
CONTRACT IF BREACH ORIGINALLY AGREED
= MATERIAL (SERIOUS UPON
NATURE)

CANCELLATION
OF CONTRACT

PARTIES CAN
CANCELLATION EXPRESSLY AGREE IN
CLAUSE = LEX CONTRACT -
COMMISSORIA CANCELLATION
CLAUSE
 (1) SPECIFIC DATE
FOR PERFORMANCE
(MORA EX RE) &
TACIT TERM THAT
TIMELY
PERFORMANCE =
ESSENTIAL

TIME FOR
(3) CANCELLATION PERFORMANCE =
CLAUSE ESSENCE OF
CANCELLATION CONTRACT

& DEFAULT OF
DEBTOR
(MORA
DEBITORIS)

DEBTOR IN MORA WITH

SUBSTANTIAL PART OF
OBLIGATION, CREDITOR
(2) NOTICE OF
CAN ACQUIRE RIGHT OF
INTENTION TO
CANCELLATION BY
CANCEL
SENDING DEBTOR NOTICE
OF INTENTION TO
CANCEL CONTRACT
 (A) SPECIFIC DATE
FOR PERFORMANCE
(MORA EX RE) &
TACIT TERM THAT
TIMELY
PERFORMANCE =
ESSENTIAL

CANCELLATION
& DEFAULT OF
CREDITOR
(MORA
CREDITORIS)

(B) NOTICE OF
(C) CANCELLATION
INTENTION TO
CLAUSE
CANCEL
 CREDITOR ENTITLED
TO CANCELLATION
OF CONTRACT
FOLLOWING
DEFECTIVE
PERFORMANCE BY
DEBTOR WHEN:

CANCELLATION &
DEFECTIVE
PERFORMANCE
(POSITIVE
MALPERFORMANCEE)

(A) MATERIAL
(B) CANCELLATION
BREACH OF
CLAUSE
CONTRACT
 (A) MATERIAL
REPUDIATION

CANCELLATION
&
REPUDIATION
OF CONTRACT

(B) CANCELLATION
CLAUSE
 PREVENTION OF
PERFORMANCE BY
DEBOT ENTTITLES
CREDITOR TO
CANCELLATION,
EXECUTION NO
LONGER POSSIBLE

CANCELLATION
& PREVENTION
OF
PERFORMANCE

PREVENTION OF
DEBTOR'S
PERFORMANCE BY
CREDITOR - DEBTOR
REGARDED AS HAVING
PERFORMED & CAN
INSIST ON
PERFORMANCE BY
CREDITOR /
CANCELLATION
 INNOCENT PARTY
HAS CHOICE TO
ENFORCE / CANCEL

RIGHT TO CANCEL
PERFORMANCE
RESERVED EVEN IF
IMPOSSIBLE -
OPPORTUNITY =
DAMAGES
GIVEN TO RECTIFY

ACT OF
CANCELLATION

INNOCENT PARTY
RIGHT OF
HAS RIGHT TO
CANCELLATION
EXPLAIN WHY IT
EXCERCISED IN
TOOK SO LONG TO
REASONABLE TIME
CANCEL CONTRACT
 TERMINATION
OF OBLIGATIONS

CONTINUING
OBLIGATIONS - NEITHER
RIGHTS ACCRUED PERFORMED -
PRIOR TO BOTH RELIEVED
CANCELLATION - OF OBLIGAITONS
NOT AFFECTED

CONSEQUENCES
OF
IMPOSSIBLE FOR
GUILTY PARTY TO CANCELLATION
RETURN 1 / BOTH
INNOCENT'S PERFORMED -
PERFORMANCE - RESTITUTION
INNOCENT NEED
NOT RETURN

RESTITUTION =
IMPOSSIBLE -
RESTITUTION
CANCELLING
PARTIALLY
PARTY RELIEVED
IMPOSSIBLE -
(AS LONG AS
RETURN WHAT IS
IMPOSSIBILITY
LEFT
NOT DUE TO HIS
FAULT)
 IDEA OF DAMAGES -
INNOCENT PARTY'S
PATRIMONY SHOULD
NOT BE ALLOWED TO
BE DIMINISHED BY
DEFENDANT'S BREACH
OF CONTRACT

DAMAGES
WHENEVER PARTY
SUFFERED LOSS -
INNOCENT PARTY
ENTITLED TO
SHOULD BE PLACED
DAMAGES - DOES
IN POSITION
NOT MATTER IF
WHOULD HAVE BEEN
CONTRACT
IF CONTRACT HAD
CANCELLED /
BEEN CARRIED OUT
EXECUTION
CLAIMED
 PATRIMONIAL LOSS

CAUSAL
CONNECTION
PROOF OF LOSS &
BETWEEN BREACH
CALC OF DAMAGES
OF CONTRACT &
LOSS

DAMAGES

DUTY TO MITIGATE
FORESEEABLE LOSS
DAMAGES
 BREACH OF
CONTRACT MUST
HAVE ADVERSELY
AFFECTED VALUE
OF INNOCENT
PARTY'S
PATRIMONY
(ESTAE)
COMPENSATION
NEGATIVE INTEREST FOR PAIN &
CLAIMED WHERE SUFFERING
UNLAWFUL CANNOT BE
CONDUCT HAS TAKEN CLAIMED ON BASIS
PLACE OF CONTRACT -
DELICT

PATRIMONIAL
LOSS

(2) PLAINTIFF'S FINANCIAL

ACTUAL FINANCIAL POSITIONS
POSITION COMPARED:

(1) FINANCIAL
POSITION
PLAINTIFF WOULD
HAVE BEEN IN IF
CONTRAT HAD
BEEN CARRIED OUT
& BREACH NOT
OCCURED
 BREACH OF
CONTRACT MUST
HAVE CAUSED
LOSS

CAUSAL
CONNECTION MAY CLAIM
CLAIMS - BREACH
OF CONTRACT - BETWEEN DAMAGES ONLY
FOR LOSSES
LIABLE FOR FULL
AMOUNT
BREACH OF RESULTED FROM
BREACH
CONTRACT &
LOSS

APPORTIONMENT
OF DAMAGES ACT
34 OF 1956 -
CONTRIBUTORY
NEGLIGENCE -
ONLY DELICT
 SOME CASES
DEFENDANT NOT
LIABLE FOR
PATRIMONAL LOSS

FORESEEABLE
LOSS
SUPREME COURT OF APPEAL -
TEST DETERMINING
DEFENDANT'S
DAMAGES FLOW NATURALLY
LIABILITY = LIMITED
FROM BREACH = HAVEING
TO LOSS NATURALLY
REGARD TO SUBJECT-MATTER
& GENERALLY FLOWS
& TERMS OF CONTRACT,
FROM KIND OF
HARM WAS SUFFEREC - HAVE
BREACH
REASONABLY FORESEEABLE
AS REALISTIC POSSIBILITY
 DEFENDANT NOT
HELD LIABLE FOR
LOSS - BREACH OF
CONTRACT WHICH
INJURED PARTY
COULD HAVE LIMITED
BY EXERCISING
REASONABLE CARE

DUTY TO
MITIGATE
DAMAGES

MUST TAKE
REASONABLE STEPS
TO LIMIT LOSS
 POSITIVE
INTEREST

CIVIL CASE -
ONUS OF
TYPICAL
PROVING LOSS
YARDSTICKS USED
RESTS ON PARTY
IN PRACTICE:
WHO CLAIMS
DAMAGES

PROOF OF
LOSS & (1) CONTRACT OF SALE IN
RESPECT OF MARKETABLE

PROOF OF LOSS CALC OF COMMODITY & MERX NOT

DELIVERED ON TIME
SUFFERED - ONE OF DAMAGE EXPRESSED AS
MOST CRITICAL DAMAGES DIFFERENCE BETWEEN
ASPECTS OF CONTRACT PRICE & MARKET
LITIGATION VALUE OF COMMODITY @
TIME & PLACE
PERFORMANCE SHOULD
HAVE OCCURED

(2) FAILURE TO
(3) DEFECTIVE DISCHARGE
EXECUTION - MONEY DEBT,
REPAIR AOUNT INTEREST
AMOUNT TO AWARDED AS
HAVE WORK DAMAGES,
DONE BY CALCULATED
SOMEONE ELSE FROM DUE DATE
OF PAYMENT