Actual or anticipatory breach

Question 1

Step 1

Answer 1

1. Establish the qualifying event
   Actual or anticipatory breach (different from repudiation as the party does not meet their obligations regardless of intention)

Question 2

Step 2

Answer 2

2. Was the term essential, or does breach of term have substantial consequences
   Express essentiality
   
   • Essential term to the canceling party expressed in terms like “performance being essential”
   • Mana Property Development: Essential term that the land would be a certain size and even thought it was only a fraction smaller it would have been a breach but as there was no time limit on when the boundaries had to be fixed
     Implied essentiality
   • Main consideration: would the party seeking cancellation more probably than not have declined to enter into the agreement if the terms were not essential (Kumar)

Question 3

Step 2.5/3

Answer 3

2.5. OR substantiality of consequences for breach
The effect of the breach, not the breach itself, must be substantial, by:
* Substantially reducing the benefit of the contract to the cancelling party; or
* Substantially increasing the burden of the contract to the cancelling party ; or
* Making the benefit or burden substantially different from that represented or contracted for

Question 4

Step 4

Answer 4

Was there affirmation
A party cannot cancel if with full knowledge of the breach or repudiation they affirmed the contract