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.