Chapter 12 PT 5

Question 1

Where performance is divisible -

Answer 1

1) The breach is committed only in respect of that part of the contract that has become
impossible to perform.

2) The creditor may thus cancel only pro tanto, in which case their own counter-
performance will be reduced proportionately.

3) If the counter-performance is not capable of such a pro-rata reduction, it may either
cancel the entire contract or accept the part-performance and recover damages in lieu of the shortfall.

Question 2

If the performance is indivisible -
The effect is the same as in the case of complete impossibility. The creditor may –

Answer 2

1) Rescind the entire contract and claim damages.
2) Accept the part-performance and perform their part, subject to a corresponding reduction.
3) Claim for damages as a surrogate of the missing performance

Question 3

Temporary Impossibility:
When does performance become temporarily impossible?

Answer 3

1) Where the contract is of an ongoing nature, such as a service contract, temporary impossibility of performance amounts to situations where the performance of a contract is hindered or prevented for a certain period, but not permanently

Question 4

Other consequences of temporary impossibility
In other cases, temporary impossibility will constitute either mora debitoris or mora
creditoris, depending on which party is to blame for the delay

Answer 4

1) Thus, a debtor who culpably prevents themselves from performing on time, lapses into mora when the time for performance arrives, provided that performance at a later stage
remains possible.

Question 4

Performance no longer possible -

Answer 4

1) If performance is no longer possible at all, or if the nature of the obligation is such that late performance is worthless and thus tantamount to no performance –

2) The impossibility is permanent, and the form of breach is prevention of performance

Question 4

It is submitted that the innocent party need not wait for the mora to arise, as it inevitably will, before taking appropriate action:

Answer 4

The breach (prevention of timeous performance) has already been committed
anticipando; thus, if time is of the essence of the contract, they may cancel the contract immediately

Question 5

Examples of overlap:

Answer 5

1) Debtor who acts in breach of a negative obligation –
1.2) guilty of positive malperformance.

2) Where the debtor’s timeous delay in performing leads to the impossibility of performing, then it is instead a –

2.2) breach in prevention of performance.

3) Where delay of performance is accompanied by words or conduct evidencing an intention to not perform/honour the obligation –

3.2) The creditor may elect based on either repudiation or mora debitoris.