Termination Flashcards
What is a repudiatory breach?
Breach of condition
Very serious breach of an innominate term
When can a contract be terminated if there has been a repudiatory breach?
Only where there are future obligations.
If the contract has already been performed it cannot be terminated.
What is ‘frustration’ in a contract?
When something out of the ordinary has frustrated the intentions of the parties.
The event must:
- make the performance of the contract impossible or radically different
- be beyond the ordinary risks that the parties would have taken on board
- beyond the control of either party
What does radically different mean in respect of frustration of contract?
Government intervention
Unavailability of a specific person
Illegality
Destruction of subject matter
Non-occurrence of a fundamental event
What is considered something unexpected in respect of frustration of contract?
Whether the parties could have foreseen the event.
If the parties have a force majeure clause there is no requirement for frustration.
What is considered beyond the control of either party in respect of frustration?
The impossibility of performance from actions a party has taken does not frustrate the contract.
What is the consequence when a contract is frustrated?
Future performance is terminated.
Money paid before an event can be recovered.
Money that should have been paid before the event need not be paid.
Where a party has conferred a valuable benefit before the frustrating event, the court may order a just sum to be paid by the recipient for that benefit.
What is the doctrine of complete performance?
Where a supplier is not entitled to the price until the performance is precise and exact.
What are the exceptions to the doctrine of complete performance?
Where there are divisible obligations
When substantial performance has taken place
Where a party has wrongfully been prevented from completing their contractual obligations
Where a supplier has voluntarily accepted a partial performance (must be genuine)
Is a supplier entitled to keep any payment received when an exception to complete performance applies?
Payment in restitution may apply where there has not been a total failure of consideration.
