Chapter 12

Question 1

Termination of contract can occur in one of two ways:

Answer 1

1) Normal termination (performance, operation of law, or by agreement).

2) Termination due to breach of contract.

Question 2

What is a breach of contract?

Answer 2

1) Through the act or omission of one of the parties, the intended result is not
achieved,

2) This amounts to a breach of contract or default (non-performance) by the party in question

3) Unless circumstances are present that result in the revocation of the liability of the party in question

Question 3

Does a breach cancel a contract?

Answer 3

1) A breach of contract does not automatically cancel the contract

2) When the other party violates the terms of the agreement and the violation is serious enough to justify cancellation, the law permits a party to take drastic measures to address the situation.

3) It might not always be evident whether the seriousness of the violation warrants cancellation in each instance

Question 4

Place of performance:

Answer 4

1) Agreed upon place.
2) Trade usages.
3) The place where goods are.
4) Nature of performance.
5) Payment of money: creditor must go to debtor

Question 5

Different Forms of Breach:

Answer 5

1) Mora debitoris= Time
2) Mora creditoris= Time
3) Positive malperformance= Content
4) Repudiation= Intention
5) Prevention of performance= Conduct

Question 6

Overlapping of breach forms:

Answer 6

1) Eg: Failure to perform and repudiation.
2) Eg: Failure to cooperate and prevention of performance

Question 7

Some forms of breach can NEVER overlap -

Answer 7

Eg: Mora and Positive Malperformance

Question 8

Where the various forms of breach may overlap-

Answer 8

1) The innocent party is entitled to the remedies available in respect of either form of breach

Question 9

Mora Debitoris:

Answer 9

1) An unjustifiable failure of a debtor to make a timeous performance of a
positive obligation that is due and enforceable and still capable of performance in spite of such failure

2) Elements: Delay or non-performance

Question 10

Requirements for mora debitoris:
For the debtor to be in mora, the following must be met:

Answer 10

1) The debt must be due and enforceable.

2) The time for performance must have been fixed in the contract, or a demand for
such must have occurred to which the debtor did not perform timeously.

3) Such failure to perform on time must be without legal justification.

Question 11

The debt must be due and enforceable:

Answer 11

1) If there is no suspensive condition or time clause, the payment is due on the date agreed upon or by a reasonable notice of demand.

2) There is a general rule for reciprocal contracts that performance must be made simultaneously otherwise the creditors claim may be defeated by the exceptio non-adimpleti contractus (defenses raised against breach).

Question 12

Failure to perform timeously:

Answer 12

1) Presupposes certainty as to the time of performance.

2) The debtor is liable to perform as soon as the debt becomes due

2) However, a debtor can’t be in mora unless a definite time has been set or a demand has been made, and such time has passed without performance

Question 13

A distinction must be made between:

Answer 13

1) Mora ex re – happens automatically.
2) Mora ex persona – happens upon demand

Question 14

Mora ex re:

Answer 14

1) This is when a specific time has been set for performance.

2) The creditor need not demand such as the due date automatically places the debtor in mora if he has not performed.

3) For this to be the case, though, the due date must not only be certain to arrive and also when it will arrive

Question 15

Demand is unnecessary in mora ex re :

Answer 15

1) Debtor is automatically in default the moment the contractually-fixed due date passes.

2) Thus, a formal demand for performance is not a pre-condition/ requirement for placing the debtor in mora.

Question 16

The time for performance is fixed by implication when –

Answer 16

1) When it is clear from the contract

2) From admissible evidence of the surrounding circumstances

Thus, a situation with a suspensive condition does not give rise without a subsequent demand for performance.

Question 17

The creditor must first demand performance by a certain and reasonable time to be able to place the debtor in mora -

Answer 17

1) May make the demand at any time after the contract has been entered into.

2) The demand must stipulate a time or date that allows for a reasonable period to perform.

3) Only when that period has expired without compliance by the debtor that mora ex persona
arises

Question 18

Mora ex persona:

Answer 18

1) No agreed time for performance is stipulated in the contract

2) Debtor cannot automatically fall into mora, even though the performance is due, and the delay Qis unreasonable

Question 19

Such failure to perform on time must be without legal justification:

Answer 19

1) Fault is not required for mora debitoris

2) Case example: In the Scoin Trading v Bernstein stated that fault is
not a default

3) Thus, impossibility of performance is an excusing factor (excusatio a mora) provided that it is temporary and not due to the fault of the debtor.

4) The onus is apparently on the debtor to show that there was some legal justification for the delay.

Question 20

Reasonableness:

Answer 20

1) The onus rests on the debtor to show that it is unreasonable unless the demand is coupled with a notice of rescission.

2) What is reasonable depends on the circumstances of each case

Question 21

Scoin Trading v Bernstein

Answer 21

1) Thus, impossibility of performance is an excusing factor (excusatio a mora) provided that it is temporary and not due to the fault of the debtor.
2) Eg: Due to a creditor or beyond the debtor’s control.