Performance and Breach

Question 1

Types of breach

Answer 1

• There is no duty of good faith in English law, but there is in civil law jurisdictions
• Types of breaches: actual + anticipatory [in advance
  = Hochster v De la Tour: you can sue immediately after the other party says it will breach; you do not have to wait until the start date of the contract – economically efficient; you get damages and move on to another contract]

Question 2

Responses to breach

Answer 2

1. termination = no longer required to perform
2. Damages = expectation, reliance, negotiating, agreed,
3. Specific performance = actions for the agreed sum, specific performance, or an injunction
4. restitution = restoring - so getting money back

Question 3

Termination

Answer 3

• Photo Production Ltd v Securicor Transport Ltd = if primary right is violated, a secondary obligation arises
• If the term breached is a condition, you can terminate, if it is a warranty, you cannot [Bettini v Gye]
• Bettini v Gye = this case held that the arrival date of the opera singer was not fundamentally important, so it was not a condition
• Hong Kong Fir Shipping Co = new test: does the breach go to the root of the contract, that makes commercial performance impossible, so frustrated, if it doesn’t meet the test for termination, damages only
• So, you can terminate a condition, you cannot terminate a warranty, and there is a test for innominate terms = how serious are the consequences of the breach: does it deprive you of substantially the whole benefit of the bargain [Hong Kong Fir Shipping Co]