Chapter 10 - Breach Of Contract

Question 1

Define breach of contract

Answer 1

When a party to a contract without lawful excuse, fails to perform in respect of the obligations under the contract.

Question 2

5 Forms of breach of Contract

Answer 2

Default by the debtor

Default by the creditor

Positive mal-performance

Repudiation

Prevention of performance

Question 3

Default by the debtor

Answer 3

A debtor commits breach of contract if they do not perform on agreed time and the delay is the debtors fault.

Requirements:

• Performance must be delayed
• Performance must be claimable(specified date or reasonable time given)
• Delay must be due to debtors fault.

Consequences:

If performance becomes impossible after he is in mora, this will not extinguish his obligations.

The creditor has remedies for breach of contract

Question 4

Default by the creditor

Answer 4

Credit causes the debtors performance to be delayed.

Requirements:

-Performance must be dischargeable
-The debtor must render performance
-The creditor must fail to cooperate and therefore
cause the debtor to be delayed
-Default must be due to creditors fault

Consequences

• Debtors duty of care is diminished and will only be liable for intentional loss or negligent loss
• Obligations of parties are not diminished
• If performance becomes impossible debtors is released for obligations but creditor is not
• if the debtor is in mora, and then the creditor falls in mora, the debtors breach falls away.

Question 5

Mora Debitoris and mora Creditoris cannot exist at the same time if the obligation is the same

Answer 5

e.g. A fails to perform to B on time and it is his fault = mora debitoris. A and B agree that he performs next day. A tries to, but B is not at home to receive the performance. B is now in breach = mora creditoris.

Question 6

Mora Debitoris and Mora Creditoris can exist at the same time of the obligations are different

Answer 6

Eg A sells something to B. It is agreed that B will pay on date of delivery. A tries to deliver, but B is not at home = mora creditoris.
B also does not pay = mora debitoris

Question 7

Positive mal-performance

Answer 7

When the debtors commits an act contrary to term of contract.

Types

Improper performance

Or does something he may not do

Question 8

Repudiation

Answer 8

When a party’s behavior indicates that he may not honor his obligations.

Question 9

Prevention of performance

Answer 9

Prevention by the debtor
-where the debtor culpably renders his performance impossible.

Eg. When the debtor exposes the creditors firm negatives to light

Prevention by the creditor

• where the creditor culpably renders the debtors performance impossible.
• Debtor relieved of performance