SU 2 Chapter 11 - Breach of contract Flashcards
(16 cards)
What is breach of contract?
When party does not perform in accordance with contract.
What is Repudiation?
Occurs when person creates objective impression that he is not going to perform in accordance with contract.
When can this Repudiation take place with regards to performance?
Can occur before or after performance must take place.
What is prevention of performance?
If a party makes their own performance or that of another party impossible.
What is needed to constitute an objective prevention to make it prevention of performance as opposed to impossibility of performance?
Fault will be required, such as negligence that occurs making performance impossible.
What is positive malperformance?
Occurs when performance of debtor does not meet standards for performance as set out by the contract.
What is Mora debitoris?
Takes place when debtor delays timeous performance but still performs, albeit late.
What is the difference between Mora debitoris and prevention of performance?
Where time and content of performance is so intertwined that late performance will have no purpose it is prevention of performance.
Mora debtitoris refers to take in which late performance will still provide a level of utility.
What are the requirements for Mora debitoris? (2)
- A time for performance will have to be stipulated and performance not rendered by that time.
- Can only occur where performance is due.
- Fault not a requirement.
Why will mora debitoris not occur where performance is subject to a supsenive condition or time clause?
If contract specifies a future date or condition that must be met before performance is required, the obligation is not yet due, so mora cannot occur.
What is mora creditoris?
Where creditor fails to co-operate to ensure timeous performance by the debtor. E.g. A undertakes to build Bs house before year end but after a month, A has not provided B with the plans yet.
What are unique features of mora debitoris?
- Duties of debtor increase with mora.
- Obligations of debtor will no longer fall away if performance becomes impossible and he still has to perform. (may be held liable for damages etc.)
- From moment debtor is mora, interest is payable.
How does mora creditoris differ from repudiation?
Mora creditoris is a failure to cooperate, preventing debtor from performing timeously. (Delay in performance.
Repudiation involves clear objective intention they will not honour the contract.
How does mora creditoris differ from prevention of performance?
Mora creditoris is a failure to cooperate, preventing debtor from performing timeously. (Delay in performance.
Prevention of performance makes the performance impossible not just delayed.
What are the requirements for mora creditoris? (5)
- Creditor must have a duty to co-operate.
- The debt must be payable or performable by debtor.
- Debtor must offer to perform.
- Creditor must refuse to co-operate in the manner required.
- Creditor does not have to be at fault.
What is unique about mora creditoris? (3)
Lightens the load of the debtor.
If performance becomes impossible, then creditor will remain liable to render counter-performance.
Debtor only liable in case where impossibility of performance is caused by him which put the creditor into mora.
