Termination - week 10 Flashcards
What causes extinction of obligations
Waiver Delegation/ Novation Compensation (set off) Confusion Prescription Mora taciturnity and acquiescence Frustration
Types of breaches of contract
anticipatory; non performance; defective performance; late performance
Describe elements of mutuality
Rights and duties are the counterpart of one another
Party in breach cannot insist on further performance by other party
Innocent party is not relieved of liabilities already incurred while party in breach conformed to contract
Case regarding mutuality
Graham v United Turkey Red Co 1922 SC 533;
Describe materiality
The more serious the breach the greater the range of remedies. A breach that does not go to the root of the contract will not entitle the other party to rescind.
Case regarding mutuality
Wade v Waldon 1909 SC 571
What is recission ?
one possible response of innocent party to material breach/ repudiation by the other party
What effect does recission have and a case that deals with it
Releases the innocent party from future obligations but not those already accrued
See dictum of Lord Drummond-Young in McNeil v Aberdeen City Council (No2) [2013] CSIH 103. W&B 10.08
What is repudiation ?
Repudiation = effect either of material breach or anticipatory breach
What is an anticipatory breach ?
Repudiation before time of performance
What options do the innocent party have to deal with this breach ?
Rescind and sue for damages
Wait until time for performance and then sue for damages
Perform and sue for contract price
What is a condition for claiming damages ?
When claiming damages the innocent party must take reasonable steps to mitigate losses.
Describe self - help remedies that can be exercised without ending the contract
Retention
Lien
Describe judicial remedies
Declarator Payment Count, reckoning and payment Specific implement Interdict Damages
