Breach remedies

Question 1

When is specific performance NOT used as a remedy

Answer 1

where the breach is due to a prevention of performance, where the effect would be unjust or if the agreement is one of a personal nature

Question 2

When is cancellation used

Answer 2

This is only applicable when the breach is material and there is a cancellation clause

Question 3

When is a breach material

Answer 3

Creditoris/debtoris: when time was stipulated and time is of the essence
Positive Malperformance: Where the breach is so serious that you cannot expect the creditor to abide by the contract and be satisfied by damage alone
Prevention of performance/repudiation: if inability to perform is of the whole/substantial part of the contract then you can cancel

Question 4

When are contractual damages used

Answer 4

Where the loss is financial, the loss must have been caused by other parts breach, loss must have been reasonably foreseeable and non-mitigating party had to minimise the loss