Breach of contract main tings Flashcards
Is fault a requirement for breach of contract
nope unless special type of contract
explain how primary and secondary obligations work in breach of contract
A primary obligation is the obligation under the contract. Once there is a breach, there is a transformation of the contract and secondary obligations and rights arise: the obligation to pay damages, the right to cancel the contract etc.
what are the remedies for breach of contract
- Specific performance
- Cancellation
- Damages
- Exceptio non adimpleti contractus:
what is positive malperformance
– there was performance but it was not in accordance with the contract.
what is negative malperformance
a failure to perform timeously on the part of the debtor (failure to deliver the debt).
what is repudiation
comes from English law and occurs when a party indicates that he will not perform according to the requirements of the contract. Repudiation is also known as an anticipatory breach.
what is impossibility of performance
one of the parties makes the performance objectively impossible.
what is mora creditoris
mora on the part of the creditor of the obligation.
Identify the breaches:
I have to deliver a cow on the 5th July. I am late with delivery on the 6th, but then say that I am not going to deliver the cow at all
I will be in mora debitoris (by not delivering on time) and repudiation (by saying that I will not perform instead).
Identify the breaches:I have to deliver a cow on the 5th of July. On the 6th of July I deliver a cow but it is the wrong one.
I am in mora debitoris (by not delivering the cow on time) and there is positive malperformance (I performed but not in accordance with the contract).
when does mora occur
There will only be mora once there is a demand and a date is fixed in that demand. We do not read into the contract that you have to perform within a reasonable time.
Identify the breach: A builder builds a skew house. You promise to deliver maize but it is not Grade A quality etc.
positive malperformance
What is the type of breach of duty that gives rise to positive malperformance
breach of a negative duty or breach of a positive duty
what are the requirements for positive malperformance
- performance in contravention
2. that was defective
what is the basic definition of mora debitoris
the debtor culpably fails to make a timeously performance of his positive obligations on or before the due date of performance + still capable of performing despite failure
