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Breach And Damages Notes

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Breach & Damages Breach


A party w/out lawful excuse: fails/refuses to perform performs defectively incapacitates himself from performing
? to be established on balance of probabilities Whether there's breach depends on precise construction of terms (no universal principle displacing analysis!)
? burden of proof on the party claiming breach + fault isn't always necessary ? BUT
? it's not repudiation for a party to put forward his genuine interpretation of what contract requires
? where he performs in a manner inconsistent w/terms, the fact that he acted in good faith isn't a defence Consequences of breach
? No automatic end to the contract?gives innocent partyoptions:
? Depends on facts but 3 principal consequences: i) recover damages for loss suffered b/c of breach
- unless liability for breach excluded -s3 UCTA
- available regardless of whether a condition, warranty or innominate term ii) party in breach may be unable to enforce innocent party's obligations under contract
- independent obligations = doesn't entitle C to abandon performance b/c of breach
- dependent obligations = C must generally be ready to perform b/f he can maintain action iii) may entitle the innocent party to terminate further performance i. breach of warranty -no termination but damages ii. breach of condition - termination
? breach doesn't have to produce serious consequences which go to the root of the contract" or be "fundamental" - enough that parties classified it as condition & intended it to be it + used the word in technical sense ((The MihalisAngelos) iii. breach of innominate term- if consequences are sufficiently serious, C can terminate
? what matters is seriousness of breach, not necessarily terminology ?Hong Kong Shipping v Kawasaki [1962]
Prospective nature of breach
? Contract 'rescinded for breach' = set aside prospectively (Johnson v Agnew; Photo Production)?
term intended to regulate consequences must be taken into consideration by court

i) ii) iii)





C has a right of election: terminate or affirm

? Ccan chooseto: 1) terminate & claim damages = accept repudiation + notify the party in breach; effective acceptance

a. b. c. d.

no particular form clearly & unequivocally conveys that C is treating contract as having been breached C doesn't have to do it personally/through agent - sufficient that it comes to D'sattn C doesn't have to give the real/valid reason so as long as terms entitle him to terminate - can do so regardless of motive
- C who accepts further performance after breach may be held to have affirmed it& will only be able to claim damages, unless waives it (total waiver)

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