Breach Flashcards
What is a breach of contract?
Breach occurs when one party fails to perform their obligations as required in the terms
of the contract
What are the forms of a breach of contract?
- Failure to perform (mora)
- Repudiation
- Incomplete or defective
performance - Prevention of performance
Define a debtor
Debtor = the performance debtor i.e. the person who must perform
Define a creditor
Creditor = the performance creditor i.e. the person to whom performance is owed
What does ‘MORA DEBITORIS ‘ and ‘MORA CREDITORIS’ mean?
In mora = in breach (late in performance) , debitoris = debtor
Hence, when the debtor is in breach and when the creditor is in breach
Who creates the demand for performance and what are the requirement’s for demand [2]?
The creditor and (can in written or verbal) must be unambiguous and
specify a definite time
What are the requirements for ‘mora creditoris’? [2]
- The debtor must be under an obligation to make performance.
- The co-operation of the creditor must be necessary for the debtor to perform on
time.
E.g The car has to be delivered to the buyers home at 5PM , the seller is on
time but the buyer is not there to take delivery.
What does ‘Mora ex re’ mean?
Here a time for the performance is fixed in the contract.
What does ‘Mora ex persona’ mean?
No time for performance has been fixed in the contract
What are the requirements for the failure to perform (mora)? [3]
- If the debtor has not performed within a reasonable time then the creditor has to
place him in mora by demanding performance. - The time given in the demand must be reasonable (depends on the facts)
- The demand can be written or verbal.
What is positive malperformance?
This is incomplete or defective performance.
E.g This is incomplete or defective performance.
What is Repudiation?
One party to the contract makes it clear by words or conduct that he no longer intends
to be bound by the contract and with no legal justification.
E.g The builder says he will not be finishing the building. This could also
overlap with positive malperformance
What is the test for Repudiation?
a reasonable person will conclude that there is no intention to fulfill one’s obligations
What is incomplete performance?
The debtor may render performance on time but deviate from the performance required by the contract
What is prevention of performance?
Performance of one party becomes impossible but due to their own fault or the fault
of the other party. The party at fault is in breach
