Week Ten Flashcards
What are the key questions regarding breach of contract and remedies?
What is a breach of contract?
What are the consequences for the parties?
What is a breach of contract?
An unjustified breach of a contractual term.
What are the types of breach?
Non-performance
Defective performance
Late performance
Anticipatory breach (before performance is due)
What are some possible justifications for breach of contract?
Other party in breach
Non-cooperation of the other party
Impossibility
What is the principle of mutuality in contract law?
Rights and duties are counterparts, and a party in breach cannot demand further performance.
Are affected parties relieved of liabilities already incurred?
No, they are not relieved of liabilities already incurred.
What are some case examples for mutuality?
Graham & Co v United Turkey Red Co Ltd (1922)
Culter Mill Restaurant Ltd v Hogg (1996)
How does the seriousness of breach affect remedies?
The seriousness of breach affects the range of remedies available.
What does it mean for a breach to “go to the root” of the contract?
It means the breach is fundamental enough to allow rescission.
Can express terms stipulate materiality?
Yes, for example, “Time is of the essence.”
What are some case examples for materiality?
Wade v Waldon (1909)
Lindley Catering Investments v Hibernian FC (1975)
What is anticipatory breach?
Repudiation before the performance time arrives.
What are the options for the innocent party in case of anticipatory breach?
Rescind and sue for damages
Wait and sue for damages
Perform and sue for contract price
What are some case examples for anticipatory breach?
White & Carter (Councils) Ltd v McGregor (1962)
AMA (New Town) Ltd v Law (2013)
Miller Fabrications Ltd v J&D Pierce (2010)
What does rescission do for the innocent party?
Releases the innocent party from future, not past obligations.
What is a case example for rescission
McNeil v Aberdeen City Council (No.2) (2013)
What does it mean to resile from a contract?
Lawful withdrawal from a contract.
What is repudiation in contract law?
Indication by one party not to perform without lawful right.
What is an example case for repudiation?
Blyth v Scottish Liberal Club (1983
What are some self-help remedies?
Retention (withholding performance)
Lien (retaining possession)
What are some judicial remedies?
Declarator
Action for Payment
Specific Implement
Interdict
Damages
What is the purpose of damages in contract law?
To restore the wronged party to the pre-breach position.
What are the requirements for damages
Compensate for pecuniary loss
Requirement to mitigate loss
What are some case examples for damages?
Wilkie v Brown (2003)
Diesen v Samson (1971)
Perry v Sidney Phillips & Son (1982)
What is the principle of causation in contract law?
There must be a link between the breach and the loss.
What is an example case for causation?
A/B Karlshamns Oljefabriker v Monarch Steamship Co Ltd (1949)
What is the principle of remoteness in contract law?
Loss must be within reasonable contemplation at the time of contracting.
What are some case examples for remoteness?
Hadley v Baxendale (1854)
Balfour Beatty Construction v Scottish Power (1994)
Transfield Shipping Inc v The Achilleas (2008)
How does a contract come to an end?
A contract can end through performance, agreement, acceptilation, novation, delegation, confusion, compensation, prescription, limitation, or frustration.
What happens when a contract comes to an end?
The obligations of the parties are discharged, and they are no longer bound by the terms of the contract.
What is performance in contract termination
Performance is the fulfillment of contractual obligations.
How can a contract be terminated by agreement?
A contract can be terminated by mutual consent of the parties involved.
What is acceptilation (acceptilatio) or discharge?
Acceptilation or discharge is the cancellation of obligations.
What is novation (novatio)?
Novation is the creation of a new, replacement contract.
What is delegation (delegatio)?
Delegation is the assignment of a new debtor to take over obligations.
What is termination by confusion?
Termination by confusion occurs when a person cannot be both debtor and creditor in the same obligation.
Give an example of termination by confusion
If A owes B £50 and B dies, leaving his estate to A, the obligation extinguishes.
What is termination by compensation (set off)?
Termination by compensation occurs when two parties owe each other and set off their obligations.
Give an example of termination by compensation
A owes B £50, and B owes A £25. A pays B £25 to settle.
What are the requirements for set off?
Each party must be both creditor and debtor.
Debts must be due.
Debts must be identifiable.
What is termination by prescription?
Legal rights can be lost or gained over time through prescription.
What are the relevant acts for prescription and limitation in Scotland
Prescription and Limitation (Scotland) Act 1973
Prescription (Scotland) Act 2018
What are the types of prescriptions?
Positive: Public rights (e.g., right of way)
Short Negative: 5-year limit for contracts (1973 Act s.6)
Long Negative: 20-year limit for contracts related to land (1973 Act s.11(1))
What is limitation in contract termination
Limitation requires proceedings to be initiated within 5 years from when the obligation becomes enforceable (1973 Act s.6(3)).
What is termination by frustration?
Termination by frustration occurs due to unforeseen, external events making performance impossible or radically different, without fault of either party.
What is a case example of termination by frustration?
Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854
What are examples of frustration due to impossibility?
Taylor v Caldwell 122 ER 309
Robinson v Davison (1871) LR 6 Ex 269
What is an example of frustration due to illegality?
Cantiere San Rocco v Clyde Shipbuilding & Engineering Co Ltd 1923 SC (HL) 105
What are examples of frustration due to a radical change of circumstances?
Krell v Henry [1903] 2 KB 740
Herne Bay Steam Boat Co v Hutton [1903] 2 KB 683
