introduction to breach of contract., Slides of Law

Download introduction to breach of contract. and more Slides Law in PDF only on Docsity! BREACH OF CONTRACT • CHAPTER 16 of FOUCHE • Defined - When a contracting party does not do exactly that which was undertaken in terms of the contract e.g. the contract states that contracting party should pay the purchase price at 13h00 and he only pays at 14h00. • Aggrieved party(person who suffers due to the breach) has right to certain remedies available to her for loss suffered. Different Forms of breach of Contract 1.Mora Debitoris 2.Mora Creditoris 3.Repudiation 4.Positive mal-performance 5.Rendering performance impossible REPUDIATION • Defined: notice given by debtor that he will not comply with contractual obligations. • Requirements: 1.Debtor gives notice of non-compliance AND 2.Creditor accepts such notice. If not accepted, leads to another form of breach of contract. POSITIVE MALPERFORMANCE • Defined: Debtor performs but the performance is inappropriate, incomplete or defective. • E.g. in terms of the contract the debtor’s obligation is to deliver a leather black jacket size 32. The debtor delivers on the agreed date and time but the leather black jacket is a size 40. RENDERING PERFORMANCE IMPOSSIBLE • Defined: The performance becomes impossible after conclusion of the contract but before delivery due to the fault of one of the contracting parties. • E.g. The contract provides that the debtor has to deliver a tray of 60 eggs to the creditor on an agreed day. On the agreed date the debtor drops the all the eggs due to being drunk. All the eggs are broken and the debtor cannot deliver due to his own fault. Remedies 4. Cancellation - extreme remedy and has to exercised within reasonable time after breach. The other party has to be informed of decision to cancel. WHEN?  Time is of the essence  Essential term of contract is breached.  Lex Commissoria – Means a contractual term expressly included in the contract giving the aggrieved party the right to cancel the contract in the event of breach of contract. TERMINATION OF CONTRACT • Proper (complete) performance • Agreement eg divorce • Merger – party has capacities of both debtor and creditor • Set-off – two persons owe each other, these debts are weighed up against each other. If equal, then extinguished. • Supervening impossibility of performance –Performance becomes impossible after conclusion of contract but before delivery of thereof due to NO fault of either of the contracting parties. • Prescription – loss of right to claim due to lapse of time. Specific Terms • Par delictum • Dictum et Promissum – representation made by seller regarding qualities of the thing sold, while he accepts responsibility for the truth of his representation. • Caveat Subscriptor – let he who signs beware • Parol Evidence rule – the written document is the only source of the contract an dnothing else will be considered as evidence. • Exturpi Causa