Part II Breach and Termination, 3 Breach of Contract

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
The Other ◽  
Breach Of Contract ◽  
Contractual Obligation ◽  
Injured Party ◽  
The Right

This chapter examines the significance of breach of contract. A party seeking to exercise the right to terminate for breach of contract must prove that the other party has broken the contract in the first place. Proving that a breach of contract has occurred involves three basic elements: (1) the party in question must have been under a contractual obligation; (2) they must have failed to perform that obligation; and (3) there must be no lawful excuse for that failure. All of these elements involve complex issues of law. Where a breach of contract has occurred, there are various remedies that may be available to the injured party. They will in all cases be entitled as of right to an award of damages, though if the breach has caused no loss these will only be nominal.

The Right of a Defaulting Party to Restitution When a Contract has not Been Rescinded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the Contracts (Remedies for Breach of Contract) Law, 1970.Sec. 9 of the Law reads as follows:(a) Where the contract is rescinded, the person in breach shall restore to the injured party what he has received thereunder, or, if restitution is impossible or unreasonable or the injured party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.

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.

8. Breach of contract

2019 ◽  
pp. 346-396
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Breach Of Contract ◽  
Contractual Obligation ◽  
Anticipatory Breach ◽  
The Subject ◽  
Injured Party ◽  
Legal Consequences ◽  
Selection Of ◽  
A Performance

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. The performance obligations of the parties to a contract are determined by contractual terms. A breach of contract arises when a party fails to fully comply with a performance obligation, without lawful excuse. If a contractual obligation is strict, failure to comply constitutes a breach of contract regardless of fault. Subject to an enforceable exemption clause, the injured party is entitled to damages to compensate for the loss suffered as a result of the breach. This chapter focuses on breach of contract and its legal consequences. It discusses the election on repudiatory breach, termination or affirmation of a contract, the classification of terms: conditions, warranties and innominate or intermediate terms, the ‘entire obligation rule’, and anticipatory breach.

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. 

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.

13. Breach of contract

2021 ◽  
pp. 628-677
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Contract Law ◽  
Breach Of Contract ◽  
Contractual Obligation ◽  
Anticipatory Breach ◽  
The Subject ◽  
Injured Party ◽  
Legal Consequences ◽  
Selection Of

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. The performance obligations of the parties to a contract are determined by contractual terms. A breach of contract arises when a party fails to fully comply with a performance obligation, without lawful excuse. If a contractual obligation is strict, failure to comply constitutes a breach of contract regardless of fault. Subject to an enforceable exemption clause, the injured party is entitled to damages to compensate for the loss suffered as a result of the breach. This chapter focuses on breach of contract and its legal consequences. It discusses the election on repudiatory breach; termination or affirmation of a contract; the classification of terms: conditions, warranties, and innominate or intermediate terms; the ‘entire obligation rule’; and anticipatory breach.

scholarly journals Raskid ugovora prema Konvenciji UN o medjunarodnoj prodaji robe

2002 ◽  
Vol 43 (155) ◽  
pp. 163-177
Author(s):  
Jelena Perovic
Keyword(s):  
World Wide ◽  
The Other ◽  
Legal Systems ◽  
Judicial Interpretation ◽  
Breach Of Contract ◽  
Reasonable Person ◽  
Contractual Obligation ◽  
International Sale Of Goods ◽  
Definition Of ◽  
International Sales

The breach of a international sales contract by one party gives the other party a right to recover damages, but we are here concerned with more specialized remedy - avoidance of the contract. In the UN Convention on the International Sale of Goods (CISG) as in national legal systems, avoidance is not available for every breach of contract. The question whether the party affected by the disturbance may avoid the contract instead of being restricted to a claim for damages or other remedies with the contract continuing in force, depends of the seriousness of the breach of contractual obligation. In the Convention, a party may avoid the contract when the other party commits a 'fundamental breach'. The party affected by breach must suffer a detriment which must be such 'as substantially to deprive him of what he is entitled to expect under the contract unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result'. The definition of 'fundamental breach of contract', as a fruit of world-wide compromise, is not always easy to apply both for the parties and the judges and it's notions of 'substantial detriment' and 'foreseeability' may give rise to divergent judicial interpretation and application. .

scholarly journals Modification And Resolution Of The Contract Of Trip Combined: Cancellation Of The Trip By The Organizer And Right Of Withdrawal Of The Tourist

2012 ◽  
Vol 11 (13) ◽  
pp. 1557
Author(s):  
Pilar Dominguez Martinez
Keyword(s):  
Essential Element ◽  
The Other ◽  
Significant Modification ◽  
Breach Of Contract ◽  
Real Right ◽  
Other Hand ◽  
The One ◽  
The Right ◽  
Right Of Withdrawal ◽  
Legal Consequences

The present study aims to consider in parallel the different legal consequences, rights and obligations of the involved subjects in a contract of travel combined in the case of modification, cancellation and withdrawal of the contract. On the one hand, the modification or cancellation by the Organizer will allow analysis of avoidance of the contract at the request of the consumer, who does not accept the significant modification of some essential element of the contract the organizer has been forced to introduce. Be on the other hand, when it is the consumer who decides that the trip not be effect or as the law says "nullifies the services requested or contracted" we taken the existence of a "right of withdrawal" and its consequences. Ultimately, the possibility of cancellation by the organizer and the consequent rights of refund or completion of another trip and the right to compensation for breach of contract will be weighed with the reflection on the existence of a real right of withdrawal of the tourist to subject certain penalties is obliged to justify its decision. The doctrine will be used to achieve this goal, and recent within the regime of safeguards jurisprudence for the tourist and the consumer is regulated in specific legislation.

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.

18. Performance and breach

2018 ◽  
Author(s):  
Elizabeth Macdonald ◽  
Ruth Atkins ◽  
Jens Krebs
Keyword(s):  
Case Law ◽  
Breach Of Contract ◽  
Anticipatory Breach ◽  
Relevant Case ◽  
Injured Party ◽  
Anticipatory Breach Of Contract ◽  
The Right

This chapter covers the two contractual situations of performance and breach. First, it recognizes that most contracts are performed and completed, with the consequence that liability ceases and the obligations under the contract are discharged by performance. Some obligations may be classed as conditions precedent, or as conditions subsequent, and the order for performance may be provided for by contingent conditions. The relevance of the entire contracts rule is noted. Second, the chapter explores the injured party’s right to terminate for breach. The right to terminate for repudiatory breach and the right to terminate for anticipatory breach of contract, are both illustrated through the relevant case law which highlight the possible options available to an injured party and the consequences which may follow.

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