Discharge By Breach

Question 1

Introduce discharge by breach.

Answer 1

• Discharge of contract - how contract comes to an end.
• Discharge by breach - contract hasn’t been performed as agreed.
• 2 types of breach.

Question 2

Explain actual breach + their remedies, in relation to discharge by breach.

Answer 2

• Where one party fails to perform their obligations (non-performance), or does it improperly (improper breach) - state which.
• V always entitled to claim for damages, but terminating depends on type of term breached.
• Only breach of condition gives right to repudiate + / or sue for damages - if repudiatory breach established, other party who’s not in breach may terminate contract + claim damages or continue contract + claim damages.

Question 3

Explain anticipatory breach + their remedies, in relation to discharge by breach.

Answer 3

• One party is due to perform their part in future, but before date they inform other party they wont be performing contract.
• C can claim immediately for breach or can wait till contract is due to be performed - then claim for actual breach.
• Hochester: as soon as other party’s made it clear they’ll not perform its anticipation of breach + can treat contract as repudiated immediately + / or claim damages.
  Remedies:
• V can claim immediately - damages put V in same position they’d been in and contract be completed - V must take reasonable steps to mitigate loss.
• V may choose not to accept anticipatory breach to see if D commits actual breach - damages assessed at time performance should occur + loss may increase.
• Breach of condition - V can claim damages + / or repudiation.
• Breach of warranty - claim limited to damages.