CONTRACT LAW REVIEW NOTES
BREACH, TERMINATION NOTES
Breach of contract occurs when a party fails to honour their
contractual obligations with legal justification. Usually when there is
breach one will enforce their contractual right through the clauses
entered into (alternative dispute resolution) or approach the court to
assist (hire an Attorney).
- Delay by the Debtor (Mora debitoris)
This form of breach involves the failure of a debtor to perform at the
agreed time, where the delay is without legal justification. Mere delay
of performance by the debtor does not automatically mean that breach
of contract has occurred, there are certain requirements that must first
be met:
a) Performance must be due and enforceable
If performance is not due and enforceable then the other party is not
entitled to claim it. For example, if the contract is subject to a
suspensive condition then the performance of obligations are
suspended until the condition is fulfilled and is not due or enforceable
until then.
b) The debtor failed to perform timeously and unreasonably so
Most contracts stipulate a date and time for performance of
obligations, but this is not always the case. If there is no time
stipulation for performance or delivery then, the delay does not
,automatically constitute breach in this situation. The creditor must
first demand that the debtor performs within a specified period or by
a specified date and if the debtor fails to perform by then they will
then be in mora.
The general rule: The creditor may demand performance
immediately upon conclusion of the contract or, where that is not
possible or practical, as soon as is reasonable given the circumstances.
For example: if you buy a book at a shop you can usually insist on
immediate delivery but if you buy a house you need to allow a
reasonable period of time for registration of the transfer of ownership
to take place.
- Delay by the Creditor (Mora Creditoris)
,This form of breach occurs when the creditor causes the delay of the
debtor’s performance where such performance requires the
cooperation of the creditor. The creditor can either make it difficult for
the debtor to perform or fail to accept performance timeously. The
following requirements must be met:
a) Performance must be due and possible
This is more or less the same as for mora debitoris above. The
debtor must be under the obligation to perform.
The creditor does not have to accept performance or cooperate if
performance is not yet due/enforceable.
b) Cooperation of the creditor must be necessary
The creditor’s cooperation must be necessary to enable the debtor to
make proper performance.
E.g. where the owner of a house has to give the painter access to it so that it can be painted
inside.
c) The debtor must tender proper performance
The debtor must take whatever steps towards proper performance
that are possible without the creditor’s cooperation and then offer or
tender performance in terms of the contract.
The performance offered must be proper and not defective or
incomplete.
d) Delay
, The creditor must fail to give the required cooperation by the date
agreed, either by delaying or refusing acceptance.
- Positive Malperformance
▪ This form of breach occurs when the debtor performs
timeously but the performance is either incomplete or
defective. Unlike both forms of mora/unreasonable delay
where the breach relates to the time of performance, positive
malperformance relates to the content of the performance.
Positive malperformance can occur where:
BREACH, TERMINATION NOTES
Breach of contract occurs when a party fails to honour their
contractual obligations with legal justification. Usually when there is
breach one will enforce their contractual right through the clauses
entered into (alternative dispute resolution) or approach the court to
assist (hire an Attorney).
- Delay by the Debtor (Mora debitoris)
This form of breach involves the failure of a debtor to perform at the
agreed time, where the delay is without legal justification. Mere delay
of performance by the debtor does not automatically mean that breach
of contract has occurred, there are certain requirements that must first
be met:
a) Performance must be due and enforceable
If performance is not due and enforceable then the other party is not
entitled to claim it. For example, if the contract is subject to a
suspensive condition then the performance of obligations are
suspended until the condition is fulfilled and is not due or enforceable
until then.
b) The debtor failed to perform timeously and unreasonably so
Most contracts stipulate a date and time for performance of
obligations, but this is not always the case. If there is no time
stipulation for performance or delivery then, the delay does not
,automatically constitute breach in this situation. The creditor must
first demand that the debtor performs within a specified period or by
a specified date and if the debtor fails to perform by then they will
then be in mora.
The general rule: The creditor may demand performance
immediately upon conclusion of the contract or, where that is not
possible or practical, as soon as is reasonable given the circumstances.
For example: if you buy a book at a shop you can usually insist on
immediate delivery but if you buy a house you need to allow a
reasonable period of time for registration of the transfer of ownership
to take place.
- Delay by the Creditor (Mora Creditoris)
,This form of breach occurs when the creditor causes the delay of the
debtor’s performance where such performance requires the
cooperation of the creditor. The creditor can either make it difficult for
the debtor to perform or fail to accept performance timeously. The
following requirements must be met:
a) Performance must be due and possible
This is more or less the same as for mora debitoris above. The
debtor must be under the obligation to perform.
The creditor does not have to accept performance or cooperate if
performance is not yet due/enforceable.
b) Cooperation of the creditor must be necessary
The creditor’s cooperation must be necessary to enable the debtor to
make proper performance.
E.g. where the owner of a house has to give the painter access to it so that it can be painted
inside.
c) The debtor must tender proper performance
The debtor must take whatever steps towards proper performance
that are possible without the creditor’s cooperation and then offer or
tender performance in terms of the contract.
The performance offered must be proper and not defective or
incomplete.
d) Delay
, The creditor must fail to give the required cooperation by the date
agreed, either by delaying or refusing acceptance.
- Positive Malperformance
▪ This form of breach occurs when the debtor performs
timeously but the performance is either incomplete or
defective. Unlike both forms of mora/unreasonable delay
where the breach relates to the time of performance, positive
malperformance relates to the content of the performance.
Positive malperformance can occur where:
