Material Breach Flashcards
Wade v Waldon 1909
How to establish that a material breach has occurred.
This is left quite open in Scot’s law:
L.P. Dunedin:
“… in any contract which contains multifarious stipulations there are some which go SO TO THE ROOT OF THE CONTRACT that a breach of those stipulations entitles the party pleading the breach to declare that the contract is at an end.”
The party wishing to rescind must argue that the breach was a material one.
Blyth v Scottish Liberal Club 1982
Repudiation - refusal to perform material stipulations of the contract is a material breach.
He tried to argue that he didn’t know that they were material stipulations - but the court measured it objectively and held that his ignorance was no defence.
White & Carter v McGregor 1962
In repudiation cases the innocent party has two choices:
- They may accept the repudiation and sue for damages under breach of contract, whether or not the mite for performance has come.
- They may refuse to accept the repudiation. The contract will remain in full effect.
McBryde 20-104
If there is intimation there is “rescission” of the contract, which takes effect from intimation.
McBryde 20-121
A right to rescind may be lost:
(1) by waiver or personal bar;
(2) by lapse of a reasonable time;
(3) by tender of effective performance.
Lindley Catering Investments Ltd v Hibs F.C. 1975
If the breach can be remedied, the party in breach should be given a second chance.
This is not completely settled as a point of law, but McBryde advocates this approach.
Strathclyde Regional Council v Border Engineering Contractors 1998
The approach in Lindley Catering was followed
Charisma Properties v Grayling 1997
Contractual provision may be made for rescission. In this case, however, the provision was badly drafted and led to litigation.
Cumming v Brown 1994
rescission is barred if not sought in an appropriate time scale
