Topic 2 : Breach of Contract Flashcards
What are the different types of breach of contract?
Malperformance - negative (mora) and positive
Anticipatory breach
Repudiation
Prevention of performance
What are the remedies for breach of contract?
Specific performance
Cancellation
Damages - with either of the two above or independently
What is the difference between positive and negative malperformance?
Negative = mora = performing late
Positive = defective performance
Definition of positive malperformance and what case set this definition?
Timely performance not in accordance with the contract. Defined in Sweet v Ragerguhara
Distinguish between mora debitoris and mora creditoris.
Mora debitoris - the debtor fails to make timeous performance of his obligations.
Mora creditoris - the creditor fails to cooperate timeously with the debtor and thus the debtor cannot perform his obligation.
When is there a right to cure?
No general duty to cure in SA law. Express or tacit term.
Trade usage in specific sector exp dressmaker.
Define positive malperformance and the two forms it can take
Positive malperformance relates to the content of the performance. It is defective performance, not in accordance with the contract.
1. Positive duty - duty to do something and the debtor performs defectively.
2. Negative duty - debtor does the act they are prohibited from doing.
What are the requirements for positive malperformance and explain each.
- Performance - actual performance occurred before, on or after the date set for performance. If creditor is required to co-operate, once they co-operate debtor is said to have performed.
- Deficient or defective performance - not in accordance with the contract. Not material but also not trivial
- Fault - vis major - if outside debtors control, not guilty of positive malperformance. Fault irrelevant when there is a duty to achieve particular result. vs when there is a duty to act with care and diligence then only negligence or deliberate act results in fault and positive malperformance.
When do you look at fault as a requirement of positive malperformance?
Duty to simply do their best OR
Presumption of fault
What are the remedies available in the case of positive malperformance?
Specific performance - Ask debtor to repair defective performance. OR performance de novo. Performance still possible, if not claim damages for defective part OR if defect is material, can reject and claim damages.
Cancellation - extraordinary remedy. Cancellation clause or if malperformance was material
What is mora debitoris?
Negative malperformance on the debtor’s side - late with performing.
What are the requirements of mora debitoris?
- Performance must be due and enforceable.
- Failure to perform timeously
- Fault
Explain the requirement of 1. Performance must be due and enforceable in the case of mora debitoris
For example time clauses and suspensive conditions - sets out specified date for performance. If not specified, must give reasonable time to perform or claim immediately depending on the nature.
Explain the requirement of Failure to perform timeously in the case of mora debitoris
If there is a specified date in the contract, debtor falls automatically into mora - mora ex re and no intervention is needed from the creditor.
VS
No specified date or time stipulated, the creditor must demand from the debtor and place them in mora ex persona. Once they have not performed by the date in the demand, then in mora.
Explain the requirement of Fault in the case of mora debitoris
If there is a legal justification for the failure to perform on time the debtor can be excused. Onus on the debtor to show.
