Breach

Question 1

Actual breach (as defined in W.J Stewart’s Dictionary of Law)

Answer 1

An actual failure of a party to a contract to perform their obligations under that contract, or an indication of his intention to do so

Question 2

Remedies

Answer 2

• Damages are available for any breach of a condition, warranty or innominate term
• The purpose in contract law is to put the injured party, in the position they would have been in had the contract been properly performed
• CL: Robinson v Harman- R claimed there had been an agreement to grant a good lease of the premises. Relying on this he’d incurred expenditure in the sum of 20pounds in preparing the lease. Further, because of Harman’s breach of contractual agreement, R claimed he’d lost great gains and profits which would have otherwise accrued to him
  Robinson successfully recovered damages for his expenses and for the loss of the bargain

Question 3

Anticipatory breach

Answer 3

• An anticipatory breach can be explicit as shown in: Hochester v De La Tour- A travel operator announced in advance that he would not be fulfilling his contract
• Or implicit, as shown in: Frost v Knight- A party stopped himself from carrying out a promise to marry by marrying another person

Question 4

Effects of anticipatory breach

Answer 4

• The other party may sue for damages immediately, rather than wait for the breach to occur
• The other party does not have to wait for the date of the performance of the contract
• The innocent party may refuse to accept repudiation. They may affirm the contract and continue to perform their obligations under it.
• A repudiation doesn’t automatically bring the contract to an end. The innocent party has an option to either affirm the contract or to terminate the contract, unless the innocent party:
  1. needs the co-operation of the other party
  2. has no legitimate interest, financial or otherwise, in performing the contract rather than claiming damages

Question 5

2 disadvantages that might occur if parties decide to affirm the contract

Answer 5

1. An innocent party who affirms the contract may lose the right to sue for damages completely if the contract is frustrated between the date of the unaccepted anticipatory breach and the date fixed for the performance.
   * CL: Avery v Bowden- The contract to supply goods to Russia was affirmed, but subsequently the Crimean War broke out and the contract was frustrated as it was illegal to trade with an enemy country
2. An innocent party who affirms the contract but subsequently breaches the contract cannot argue that the unaccepted anticipatory breach excused them from their obligations to perform under the contract.
   * Where the breach isn’t accepted, the parties remain subject to their obligations under the contract. The innocent party may therefore find themselves liable to pay damages for breach of contract, if they fail to accept the anticipatory breach and subsequently breach the contract themselves.