Chapter 10

Question 1

What is a breach of contract?

Answer 1

When a party fails to fulfil their contractual obligations without lawful justification, it is known as a breach of contract.

Question 2

What are the five common types of breaches?

Answer 2

Breach due to positive malperformance,
Due to delay in performance by creditor,
Due to delay performance by the debtor,
Due to impossibility,
Due to repudiation.

Question 3

Differentiate between a debtor and a creditor.

Answer 3

A debtor is a contracting party who owes performance while a creditor is a contracting party who is entitled to receive the performance.

Question 4

Describe breach due to positive malperformance by the debtor.

Answer 4

This breach arises when the debtor did actually perform when the performance became due, but the performance was contrary to what was agreed upon in the contract and there is no lawful justification for the positive malperformance.

Question 5

What are the two sub-categories of breach due to positive malperformance by debtor?

Answer 5

The debtor rendered performance that was defective, incomplete or improper performance.

The debtor performed in a way that was not expressly or tacitly allowed in terms of the contract.

Question 6

True or false: the creditor is compelled to accept the positive malperformance from the debtor and may not insist on full and proper performance.

Answer 6

False

Question 7

Describe breach due to a delay in performance by the debtor.
(Mention the characteristics)

Answer 7

It is also known as ‘default by the debtor’ (mora debitoris).

This breach arises when the debtor has failed to perform at the required time without legal justification. The performance must be possible and it must be due and enforceable – this means that the due date of the performance must have arrived.

Question 8

Describe breach due to a delay in performance by the creditor.

Answer 8

This type of breach is also known as ‘default by the creditor’ (mora creditoris). This breach takes place when the debtor’s performance is reliant on the creditor cooperation. There must be no lawful justification, the debtor’s performance must still be possible and the creditors contractual obligation to cooperate must be due and enforceable.

Question 9

True or false: default by the creditor extinguishes the debtor’s obligation to perform?

Answer 9

False

Question 10

What are the two types of breach due to impossibility?

Answer 10

There are two types of breach due to impossibility:
• The debtor makes their own performance impossible without lawful justification.
• The creditor makes it impossible for the debtor to perform without lawful justification.

Question 11

Describe breach due to impossibility.

Answer 11

This type of breach arises when performance is objectively or subjectively impossible due to the fault of the parties (either the debtor or the creditor). There is no lawful justification for the impossibility.

This breach can occur any time after the confusion of the contract, but before performance.

Question 12

Define breach due to repudiation.

Answer 12

This type of breach occurs when the debtor’s conduct shows that they will not honour their contractual obligations and when there is no lawful justification for the refusal to perform.

Question 13

When can repudiation take place?

Answer 13

It can take place anytime before the performance is due or after the performance is due but before the debtor has performed.