BUSINESS

LAW 1
BREACH OF CONTRACT
QUESTION IS WHY ARE THE PARTIES IN CONFLICT
BREACH OF CONTRACT
• It usually happens if one of the parties refuses to perform or cannot perform.

• Breach may take form in one of the five to be discussed.

• Breach does not terminate a contract but it brings forward remedies.

• Parties entering the contract may also agree on remedies where one of the parties fails to perform.

• The injured party may either resile or cancel the contract = of the contract

• 1) In this chapter we will deal with different types of breach

• 2) deal with different types of remedies

• 3) deal with different types of termination of contract

TYPES OF BREACH
• FIVE FORMS OF BREACH RECOGNISED BY LAW OF CONTRACT

• Delay by debtor (Mora debitoris)

• If a debtor fails to perform timeously in terms of the contract

• Requirements
a) Performance still possible (initial impossibility to perform will make the contract void rather than breach of
contract)
b) Debtor fails to perform timeously( time, date stipulated= no demand necessary by the creditor)
a) Demand is important if time and date are not stipulated.
b) The creditor had to deliver a notice of demand or interpellatio (written or verval
c) The time specified must be reasonable
c) Performance must be already due and enforceable , unless relevant defence one of which being exceptio non
adimpleti.
d) Delay because of debtor’s fault is irrelevant = absence of fault will not prevent the breach (Mora)
•Consequence of breach – legal obligation is perpetuated until the court decision claim from failure to deliver - in
case performance becomes impossible the legal obligation may terminate but the claim may still be brought
DELAY BY THE CREDITOR
• Delay by the creditor (Mora creditoris)

• The creditor in this particular instance is at fault in that he/she fails to accept performance. Or fails to co-operate
• Requirement:
a) Performance is still possible
b) Creditor delays performance The creditor cannot be in mora if the debtor did not undertake to do something.
c) Performance due and enforceable ( creditor may refuse to accept the benefit if it would benefit creditor pro creditor or if the performance
was subject to a suspensive condition.
d) Proper performance offered by the debtor
e) Delay because of creditors’ fault
•Consequence of breach
• Debtor not excused from performing not unless the performance is impossible
• Mora debitoris cancelled
• The debtor’s duty to take care of the object diminished
• Obligation perpetuated
POSITIVE MAL PERFORMANCE
• THIS BREACH REFERS TO THE CONTENT OR
QUALITY OF THE PERFORMANCE THE
DEBTOR HAD TO DELIVER IN TERMS OF
THE CONTRACT. IT MAY EITHER BE
POSITIVE DUTY OR NEGATIVE DUTY.
• Positive duty entails a duty to perform at a certain
level, and, must not be defective or must pay a
certain amount.
• Negative duty is to refrain from doing some specific
manner or refrain from acting in a certain manner
• Fault is not a requirement the debtor may rely on vis
maiour as a defence or coincidence.
•Consequences = normal contractual remedies
REPUDIATION
• Repudiation is when one party communicate to the other that they do not want to
be part of the contract with reason or justification. (expressly and tacitly).
• Requirements:
• Action
• This can either be communicated or through non-verbal conduct this is different
from late delivery.
• Intention
• The test will be an objective, reasonable man test – would a reasonable man have
concluded that the debtor intends to repudiate his contractual duties? The
subjective intent of the debtor may not be taken into account.

• Consequence
• Does not terminate legal obligation = innocent party may accept or bring legal
action.
• The innocent party may obtain a right to cancel the contract, and, claim damages.
• The innocent part may also obtain specific performance
 PREVENTION OF
PERFORMANCE by
Debtor

• The debtor commits a breach of contract

when he prevents performance where he/she
renders his performance impossible. The
debtor took the measurements of the dress
but the result was an ill-fitting dress.
Prevented the creditor from wearing a dress
she paid for. Although the dress is completed
the creditor has to buy another dress.
This Photo by Unknown Author is licensed under CC BY-NC-ND
Prevention of
performance by creditor
The creditor commits a breach of
contract when he/she prevents
performance where he/she renders
his performance impossible. of.
• The debtor is going to start
installing your security alarm and
the creditor installs from a
security company