15. Breach of contract

Contract Law ◽  
2019 ◽  
pp. 429-466
Author(s):  
TT Arvind
Keyword(s):  
The Other ◽  
Breach Of Contract ◽  
The Core ◽  
Anticipatory Breach ◽  
English Law ◽  
The Law ◽  
The Right

This chapter examines how English law defines breach of contract and what the immediate effect of breach is on the validity of the contract, along with the obligations of the parties under the contract. It first considers the core principles underlying the law’s approach to defining breach before explaining how the courts assess performance and the consequences of breach, with particular emphasis on cases involving repudiation. It then discusses three types or classes of contractual terms: conditions, warranties, and innominate terms. It also looks at how the law deals with situations of anticipatory breach and concludes with an analysis of the scope and limits of the right of a party to terminate the contract following a repudiatory breach by the other party.

15. Breach of contract

Contract Law ◽  
2017 ◽  
Author(s):  
TT Arvind
Keyword(s):  
The Other ◽  
Breach Of Contract ◽  
The Core ◽  
Anticipatory Breach ◽  
English Law ◽  
The Law ◽  
The Right

This chapter examines how English law defines breach of contract and what the immediate effect of breach is on the validity of the contract, along with the obligations of the parties under the contract. It first considers the core principles underlying the law's approach to defining breach before explaining how the courts assess performance and the consequences of breach, with particular emphasis on cases involving repudiation. It then discusses three types or classes of contractual terms: conditions, warranties, and innominate terms. It also looks at how the law deals with situations of anticipatory breach and concludes with an analysis of the scope and limits of the right of a party to terminate the contract following a repudiatory breach by the other party.

Part I Introduction, 1 The Nature of Termination

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
Common Law ◽  
The Other ◽  
Breach Of Contract ◽  
Close Relationship ◽  
The Law ◽  
The Right ◽  
The Relationship ◽  
Right To Refuse

This chapter discusses the nature of termination for breach. Termination for breach can be seen both as a process and as a remedy. Traditionally, the topic has been dealt with under the broader umbrella of ‘discharge’, alongside such topics as performance, frustration, and agreement. Problems arise, however, when the notion of discharge is pressed too far; in particular, the idea of the contract ‘coming to an end’ can be a misleading one, and has given rise to various errors and misconceptions. For this and other reasons, more emphasis is now given to termination in the context of remedies. Termination can be one of the most useful weapons in the armoury for the victim of a breach of contract, not least because, unlike many other remedies, it does not require recourse to the courts. However, this notion of termination as a remedy should not obscure the close relationship between termination and the other modes of discharge, most notably frustration. The chapter then looks at the problems in this area of the law, including problems of terminology, the different ways in which common law and equity have approached the question, and the relationship between discharge and damages. It also considers the most important aspects of the right to terminate, including the right to refuse performance.

scholarly journals DISGORGEMENT DAMAGES FOR BREACH OF CONTRACT

2012 ◽  
Vol 20 (1) ◽  
pp. 87-110
Author(s):  
Adam Temple
Keyword(s):  
Theoretical Basis ◽  
The Other ◽  
Rational Basis ◽  
Breach Of Contract ◽  
Contractual Obligation ◽  
The Core ◽  
The Law

Gain-based damages for breach of contract are often viewed as anomalous, and lacking a clear rational basis. This article seeks to provide a theoretical basis for the requirement to disgorge profits gained through breach of contract.  By looking at the core contractual obligation, it can be seen that a contracting party has two ways in which they can fulfil their promises. They can pay damages where they fully compensate the other party, or they can perform. Where damages are inadequate, the contracting party must perform. Failure to perform in such circumstances should be prevented, and it is argued that disgorgement of profits is a suitable deterrent to such contract breakers. It is suggested that the law should act in this way to protect the facilitative institution of contract. 

The Right of a Defaulting Party to Restitution When a Contract has not Been Rescinded

1974 ◽  
Vol 9 (3) ◽  
pp. 352-368 ◽  
Author(s):  
Daniel Friedmann ◽  
Asher Maoz
Keyword(s):  
Contract Law ◽  
The Other ◽  
Satisfactory Solution ◽  
Breach Of Contract ◽  
Difference Of Opinion ◽  
Injured Party ◽  
The Law ◽  
The Right

Is a party who breaks his contract entitled to restitution? This is one of the most difficult problems in the law of contracts. Williston, for instance, remarks:Few questions in the law have given rise to more discussion and difference of opinion than that concerning the right of one who has materially broken his contract without legal excuse to recover for such benefit as he may have conferred on the other party by part performance of an indivisible contract or by the performance of an indivisible fraction of a divisible portion of a contract. A satisfactory solution is not easy.We shall examine this question in light of the provisions of the Contracts (Remedies for Breach of Contract) Law, 1970.Sec. 9 of the Law reads as follows:(a) Where the contract is rescinded, the person in breach shall restore to the injured party what he has received thereunder, or, if restitution is impossible or unreasonable or the injured party so chooses, shall pay him the value thereof; and the injured party shall restore to the person in breach what he has received under the contract, or, if restitution is impossible or unreasonable or the injured party so chooses, shall pay him the value thereof.(b) Where part of the contract is rescinded, the provisions of subsection (a) shall apply to what the parties have received under that part.

INFERRING FUTURE BREACH: TOWARDS A UNIFYING TEST OF ANTICIPATORY BREACH OF CONTRACT

2007 ◽  
Vol 66 (3) ◽  
pp. 574-604
Author(s):  
Qiao Liu
Keyword(s):  
Premature Termination ◽  
Conceptual Structure ◽  
The Other ◽  
Breach Of Contract ◽  
Anticipatory Breach ◽  
Cognitive Failure ◽  
Legal Test ◽  
The Law ◽  
Anticipatory Breach Of Contract

The doctrine of anticipatory breach was officially first established in a famous 1853 case, enabling a party to a contract to terminate it and sue for damages immediately after the other party refused to fulfil its part, despite the fact that the time stipulated for the latter's performance had not arrived. The doctrine has since been employed by counsel as a vehicle to justify a premature termination of contract in numerous legal battles. It was perhaps with the confidence in such vast general judicial experience that Lord Wilberforce once declared that the rules determining the existence of an anticipatory breach constituted “one of the more perspicuous branches of the law of contract”. With due respect, however, his Lordship seemed to be too optimistic on that occasion. When one takes a closer look at decided cases, it is hard to resist the conclusion that this area of law is still plagued with inconsistency, uncertainty and incoherence. Where the existence of an anticipatory breach of contract is in dispute, the courts have been applying two distinct approaches to fact patterns of the same nature. A major cause for this disparity is the courts' failure to realise in some cases that the cases they are dealing with are anticipatory breach cases and should be subjected to a uniform test. This cognitive failure is largely attributable to the fact that, although the term “anticipatory breach” itself was criticised on several occasions, little has been done to illuminate the very nature of an anticipatory breach of contract and what distinguishes it from what we normally conceive of as a breach of contract, namely an “actual breach” of contract. Another cause of the disparity of the courts' approaches is perhaps English law's case-to-case, piecemeal methodology. Pragmatic though this methodology may be, it is sometimes necessary to amass the fragmented pieces and fit them into a clear and stable conceptual structure, thereby bringing the law to a higher level of generalisation. It is the purpose of this article to propose a general legal test for all types of anticipatory breach on the basis of an exposition of its nature and hopefully to bring order, rationality and unity to this chaotic area of law.

scholarly journals The Code of Capital: How the Law Creates Wealth and Inequality – Core Themes

2021 ◽  
Vol 11 (1) ◽  
pp. 1-7
Author(s):  
Katharina Pistor
Keyword(s):  
Coercive Power ◽  
Private Law ◽  
The Core ◽  
The Law ◽  
The Right

Abstract In this brief introduction, I summarize the core themes of my book “The Code of Capital: How the Law Creates Wealth and Inequality”. Capital, I argue, is coded in law – predominantly in a handful of private law institutions. By relying on legal coding techniques, asset holders invoke the right to enforce claims against others, if necessary with the help of the state’s coercive power.

Termination for Breach of Contract

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
Final Section ◽  
Breach Of Contract ◽  
The Third ◽  
Specific Performance ◽  
The Subject ◽  
Key Topics ◽  
English Law ◽  
The Right ◽  
Legal Consequences

The aims of this book are to set out in detail the rules governing termination as a remedy for breach of contract in English law, to distil the very complex body of law on the subject to a clear set of principles, and to apply the law in a practical context. This book is divided into four parts. The first section sets out to analyse what is involved in termination and looks at some of the difficulties surrounding the topic, before going on to explain the evolution of the present law and its main principles. The second section provides a thorough analysis of the two key topics of breach and termination. The third section addresses the question when the right to terminate for breach arises. And the fourth and final section considers the consequences of the promisee's election whether to terminate or not. The final chapter examines the legal consequences of affirmation, once again both with regard to the promisee and the promisor, with particular emphasis on the extent of the promisee's right to enforce the performance of the contract by way of an action for an agreed sum or an action for specific performance.

KEPEMILIKAN DAN PENGUASAAN OBJEK JAMINAN FIDUSIA APABILA TERJADI SENGKETA WANPRESTASI DALAM PERJANJIAN KREDIT

2020 ◽  
Vol 8 (1) ◽  
pp. 78
Author(s):  
Dija Hedistira ◽  
' Pujiyono
Keyword(s):  
Economic Benefits ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
Analysis Method ◽  
The Law ◽  
The Right

<p>Abstract<br />This article aims to analyze the ownership and mastery of a fiduciary collateral object, in cases that often occur today, many disputes between creditors and debtors in fiduciary collateral agreements are caused because creditors assume that with executive rights as fiduciary recipients, the fiduciary collateral object legally owned by creditors and creditors the right to take and sell fiduciary collateral objects when the debtor defaults unilaterally, as well as the debtor who considers that the fiduciary collateral object is owned by him because the object is registered on his name, so that the debtor can use the object free as  giving to a third party or selling the object of fiduciary guarantee unilaterally. the author uses a normative <br />juridical approach, and deductive analysis method based on the Civil Code and fiduciary law applicable in Indonesia, Law No. 42 of 1999 concerning Fiduciary Guarantees. The conclusion of the discussion is the ownership of the object of the Fiduciary Guarantee is owned by the debtor in accordance with the Law, mastery of the object of collateral controlled by the debtor for economic benefits, the procedure of execution The object of Fiduciary Guarantee is carried out in accordance with the Fiduciary Guarantee Act, an alternative mediation in resolving the dispute. There needs to be clarity in the use of language in making a law, so as not to conflict with each other between Article one and the other Articles.<br />Keywords: Ownership; Mastery; Object of Fiduciary Guarantee; Debtor; Creditors.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis tentang kepemilikan dan penguasaan suatu objek jaminan fidusia, dalam kasus yang saat ini sering terjadi, banyak sengketa antara kreditur dan debitur dalam perjanjian jaminan fidusia disebabkan karena kreditur beranggapan bahwa dengan adanya hak eksekutorial sebagai penerima fidusia, maka objek jaminan fidusia tersebut secara sah dimiliki oleh kreditur dan kreditur berhak mengambil dan menjual objek jaminan fidusia saat debitur cidera janji<br />(wanprestasi) secara sepihak, begitupun dengan debitur yang menganggap bahwa objek jaminan fidusia tersebut dimiliki olehnya karena objek tersebut terdaftar atas namannya, sehingga debitur dapat mempergunakan objek tersebut secara bebas seperti menyerahkan kepada pihak ketiga atau menjual objek jaminan fidusia tersebut secara sepihak. penulis menggunakan pendekatan yuridis normatif, dan metode analisis deduktif yang didasarkan pada Kitab Undang-Undang Hukum Perdata<br />dan hukum jaminan fidusia yang berlaku di Indonesia, Undang-Undang No. 42 Tahun 1999 tentang Jaminan Fidusia. Kesimpulan pembahasan adalah Kepemilikan Objek Jaminan Fidusia dimiliki oleh debitur sesuai Undang-undang, penguasaan objek jaminan dikuasai debitur untuk manfaat ekonomis, prosedur eksekusi Objek Jaminan Fidusia dilakukan sesuai dengan Undang-Undang Jaminan Fidusia, alternatif secara mediasi dalam menyelesaikan sengketa yang terjadi. Perlu ada kejelasan dalam<br />penggunaan bahasa pada pembuatan suatu Undang-Undang, agar tidak saling bertentangan antar Pasal satu dengan Pasal yang lainnya. <br />Kata Kunci: Kepemilikan; Penguasaan; Objek Jaminan Fidusia; Debitur; Kreditur.</p>

scholarly journals Young Stages of Zeugopterus punctatus

1894 ◽  
Vol 3 (3) ◽  
pp. 202-205 ◽  
Author(s):  
J. T. Cunningham
Keyword(s):  
Frontal Bone ◽  
The Other ◽  
Terminal Portion ◽  
Facial Region ◽  
The Core ◽  
Dorsal Fin ◽  
Undifferentiated Cells ◽  
Auditory Region ◽  
The Right

On May 4th of the current year a number of small Pleuronectids were captured by the hand in a pool left by the ebb tide at Plymouth Breakwater, and brought to me alive. Two of them were very transparent, and, from their habit of lying on the right side when at rest, evidently sinistral forms. One of them was almost perfectly symmetrical; while in the other the torsion of the facial region and eyes had commenced. The pigmentation had the form of interrupted transverse bands, which were most conspicuous on the dorsal and ventral fins; on the dorsal fin seven bands were indicated. The terminal portion of the original trunk, containing the notochord, was seen at the upper edge of the caudal fin. The neurochord was covered with pigment, forming a very distinct band, situated, however, not in the skin, but in the connective tissue surrounding the neurochord or spinal cord. The mouth was large, and the snout upturned. The pectoral fin was large, the pelvic small. But the most important characteristic was the presence of two straight spines projecting laterally from the auditory region. These have been called otocystic spines by Prof. McIntosh, but I think they would be more appropriately described as periotic spines, as they are evidently projections of the periotic cartilage or bone; to which particular bones of the periotic region they belong has not been determined. Mr. Holt cut sections of the spines in situ, and found that they consisted of a knob of periotic cartilage passing into a mass of undifferentiated cells, the whole forming the core of a dermal spine consisting of hyaline ossified tissue. In my specimens I observed a third spine, much smaller, situated in the region of the frontal bone, behind and above the eye; it was visible in both the stages.

scholarly journals ABUSE OF THE RIGHT TO INITIATE BANKRUPTCY PROCEEDINGS

2020 ◽  
pp. 259-264
Author(s):  
В. В. Дутка
Keyword(s):  
The Other ◽  
Legal Entity ◽  
Legal Norms ◽  
Other Hand ◽  
Bankruptcy Procedure ◽  
Good For ◽  
The Law ◽  
The Right ◽  
Ordinary Citizens ◽  
Legal Entities

The relevance of the article is that society’s attitude to the bankruptcy procedure is ambiguous: ordinary citizens who have never been involved in bankruptcy proceedings often perceive it as a certain negative phenomenon that should be avoided and avoided. On the other hand, for many debtors, bankruptcy becomes the “lifeline” with which they can repay their claims to creditors and start financial life “from scratch”. At the same time, it should be noted that many debtors and creditors use the bankruptcy procedure not for the purposes provided by the legislator in the relevant legal norms, but to satisfy only their own interests, to the detriment of the interests of other parties to the case. In this regard, the study of the abuse of the right to initiate bankruptcy proceedings becomes relevant. The article is devoted to the study of abuse of the right to initiate bankruptcy proceedings. The purpose of the article is to study the abuse of the right to initiate bankruptcy proceedings and highlight the author’s vision of this issue. According to the results of the study, the author concludes that the application to the debtor of bankruptcy procedures can be both good for the debtor and to the detriment of the interests of his creditors. Entities that could potentially abuse the right to initiate bankruptcy proceedings are: creditors of the debtor – a legal entity, as well as debtors – legal entities, individuals and individuals – entrepreneurs. The fact of exemption of debtors from the court fee for filing an application to initiate bankruptcy proceedings is not only an unjustified luxury for our state, but also only contributes to the abuse of the right to initiate bankruptcy proceedings by unscrupulous debtors. In order to reduce the number of cases of abuse of the right to initiate bankruptcy proceedings, the author justifies the need to complicate the conditions for opening bankruptcy proceedings, for example, by returning the conditions provided by the Law of Ukraine “On Restoration of Debtor’s Solvency or Recognition of Debtor’s Bankruptcy”.

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