A Comparative Account on the ‘Practical and Fair’ Aspects of the Vienna Convention Rules and of the English Common Law Rules on Anticipatory Breach of Contract

22. Breach of Contract and Termination

Contract Law ◽

10.1093/he/9780198808169.003.0022 ◽

2018 ◽

Author(s):

Ewan McKendrick

Keyword(s):

Contract Law ◽

Good Faith ◽

Vienna Convention ◽

European Contract ◽

Breach Of Contract ◽

Anticipatory Breach ◽

The Status ◽

Anticipatory Breach Of Contract ◽

Definition Of ◽

The Right

This chapter begins with a definition of ‘breach of contract’ and then outlines the circumstances in which a breach of contract gives to the innocent party a right to terminate further performance of the contract. These include breach of a condition and breach of an intermediate term where the consequences of the breach are sufficiently serious. The chapter also considers the problems that can arise in deciding the status of a term which has not been classified by the parties as a condition, a warranty, or an intermediate term. It examines termination clauses and the significance attached to the good faith of the party who is alleged to have repudiated the contract. The chapter includes a brief comparison of English law with the Vienna Convention and with the Principles of European Contract Law, and also addresses the question of whether an innocent party is obligated to exercise its right to terminate further performance of the contract, and considers the loss of the right to terminate. It concludes with a discussion of the law of anticipatory breach of contract.

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22. Breach of Contract and Termination

Contract Law ◽

10.1093/he/9780198855293.003.0022 ◽

2020 ◽

pp. 737-790

Author(s):

Ewan McKendrick

Keyword(s):

Contract Law ◽

Good Faith ◽

Vienna Convention ◽

European Contract ◽

Breach Of Contract ◽

Anticipatory Breach ◽

The Status ◽

Anticipatory Breach Of Contract ◽

Definition Of ◽

The Right

This chapter begins with a definition of ‘breach of contract’ and then outlines the circumstances in which a breach of contract gives to the innocent party a right to terminate further performance of the contract. These include breach of a condition and breach of an intermediate term where the consequences of the breach are sufficiently serious. The chapter also considers the problems that can arise in deciding the status of a term which has not been classified by the parties as a condition, a warranty, or an intermediate term. It examines termination clauses and the significance attached to the good faith of the party who is alleged to have repudiated the contract. The chapter includes a brief comparison of English law with the Vienna Convention on Contracts for the International Sale of Goods and with the Principles of European Contract Law, and also addresses the question of whether an innocent party is obligated to exercise its right to terminate further performance of the contract, and considers the loss of the right to terminate. It concludes with a discussion of the law of anticipatory breach of contract.

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26. Anticipatory breach of contract

10.1093/he/9780198853503.003.0026 ◽

2021 ◽

pp. 392-400

Author(s):

Paul S. Davies

Keyword(s):

Breach Of Contract ◽

Contract Price ◽

Contractual Obligation ◽

Anticipatory Breach ◽

Legitimate Interest ◽

Anticipatory Breach Of Contract ◽

Do So

This chapter examines the doctrine of anticipatory breach, which occurs where, before the time comes for A to perform their part of the contract, A declares that A is not going to do so. This repudiation of the contractual obligation is itself a breach of contract. The innocent party may choose to either accept or reject an anticipatory breach. If they accept, the contract is terminated and the innocent party can sue for damages immediately. If the anticipatory breach is rejected, then the contract remains on foot. If the innocent party elects not to accept the breach and to keep the contract alive, then they may proceed to perform their side of the bargain and sue for the contract price. However, it appears that this action for the agreed sum, or action in debt, may not succeed if the innocent party had no ‘legitimate interest’ in taking such steps.

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