2. BREACH OF CONTRACT - A1S2 2024
Scope
2.1 General
Definition:
• Breach of contract refers to conduct that infringes a contractual obligation in a manner
contrary to the norms of contract law.
• Not a Delict:
◦ While a set of facts can give rise to both a delictual claim and a contractual claim,
breach of contract itself is not a delict.
◦ Damage: Not a requirement for breach; the aggrieved party need not have suffered a
loss.
◦ Fault:
▪ As a general principle of decision (POD), fault on the part of the contracting party
who allegedly breached the contract is not a requirement.
▪ Administrateur, Natal v Edouard (1990) (A):
• Obiter dictum suggests that fault is not required for a breach of contract.
• However, this is not entirely accurate. While fault is generally not required, there
are circumstances where it must be proven, especially if the parties agreed that
fault is necessary or where it is inherent in the type of contract.
Types of Breach:
1. Malperformance:
• Occurs when a contracting party fails to perform as required by the contract.
• Types:
◦ Positive Malperformance: Performance occurs, but it is defective.
◦ Negative Malperformance (Mora): Performance is delayed.
2. Anticipatory Breach:
• Two types:
◦ Repudiation: A party indicates that they will not abide by the contract.
◦ Prevention of Performance: A party makes it impossible for themselves or the
other party to perform.
• Why Anticipatory?:
◦ These breaches anticipate malperformance in the future and can occur before the
date set for performance.
3. Fragmented Approach:
, • There are two main categories and four types of breach, but these categories can
overlap, meaning multiple types of breach can occur in relation to the same set of
facts.
4. Breach by Creditor:
• Breach of contract can also occur in the capacity of a creditor, not just as a debtor.
Remedies:
(a) Specific Performance:
• A court order requiring a party to perform as promised.
• Primary Remedy:
◦ It is the primary remedy for breach of contract because it upholds the principle of
pacta sunt servanda (agreements must be kept).
(b) Cancellation:
• The contract is terminated.
• Serious Remedy:
◦ Considered a serious remedy, only available in exceptional circumstances.
(c) Damages:
• Damages can be claimed alongside specific performance or cancellation, or
independently.
• Claim Amount:
◦ The amount that can be claimed depends on whether the claim is made on its own
or in combination with another remedy for breach of contract.
2.2 Positive Malperformance
Definition:
• Positive Malperformance: Occurs when there is performance, but it does not conform
to the terms of the contract, i.e., the performance is defective.
• The focus is on the content of the performance. For example, if a contract specifies that
A must deliver a ton of apples, but A only delivers half a ton, this constitutes positive
malperformance.
Forms of Positive Malperformance:
1. Positive Duty:
• Breach of Positive Duty: When an obligation requires the debtor to give or do
something, and the performance is defective.
2. Negative Duty:
• Breach of Negative Duty: When an obligation prohibits the debtor from doing
something (contractual prohibition), and the debtor does the prohibited act. For
example, violating a restraint of trade clause.
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Scope
2.1 General
Definition:
• Breach of contract refers to conduct that infringes a contractual obligation in a manner
contrary to the norms of contract law.
• Not a Delict:
◦ While a set of facts can give rise to both a delictual claim and a contractual claim,
breach of contract itself is not a delict.
◦ Damage: Not a requirement for breach; the aggrieved party need not have suffered a
loss.
◦ Fault:
▪ As a general principle of decision (POD), fault on the part of the contracting party
who allegedly breached the contract is not a requirement.
▪ Administrateur, Natal v Edouard (1990) (A):
• Obiter dictum suggests that fault is not required for a breach of contract.
• However, this is not entirely accurate. While fault is generally not required, there
are circumstances where it must be proven, especially if the parties agreed that
fault is necessary or where it is inherent in the type of contract.
Types of Breach:
1. Malperformance:
• Occurs when a contracting party fails to perform as required by the contract.
• Types:
◦ Positive Malperformance: Performance occurs, but it is defective.
◦ Negative Malperformance (Mora): Performance is delayed.
2. Anticipatory Breach:
• Two types:
◦ Repudiation: A party indicates that they will not abide by the contract.
◦ Prevention of Performance: A party makes it impossible for themselves or the
other party to perform.
• Why Anticipatory?:
◦ These breaches anticipate malperformance in the future and can occur before the
date set for performance.
3. Fragmented Approach:
, • There are two main categories and four types of breach, but these categories can
overlap, meaning multiple types of breach can occur in relation to the same set of
facts.
4. Breach by Creditor:
• Breach of contract can also occur in the capacity of a creditor, not just as a debtor.
Remedies:
(a) Specific Performance:
• A court order requiring a party to perform as promised.
• Primary Remedy:
◦ It is the primary remedy for breach of contract because it upholds the principle of
pacta sunt servanda (agreements must be kept).
(b) Cancellation:
• The contract is terminated.
• Serious Remedy:
◦ Considered a serious remedy, only available in exceptional circumstances.
(c) Damages:
• Damages can be claimed alongside specific performance or cancellation, or
independently.
• Claim Amount:
◦ The amount that can be claimed depends on whether the claim is made on its own
or in combination with another remedy for breach of contract.
2.2 Positive Malperformance
Definition:
• Positive Malperformance: Occurs when there is performance, but it does not conform
to the terms of the contract, i.e., the performance is defective.
• The focus is on the content of the performance. For example, if a contract specifies that
A must deliver a ton of apples, but A only delivers half a ton, this constitutes positive
malperformance.
Forms of Positive Malperformance:
1. Positive Duty:
• Breach of Positive Duty: When an obligation requires the debtor to give or do
something, and the performance is defective.
2. Negative Duty:
• Breach of Negative Duty: When an obligation prohibits the debtor from doing
something (contractual prohibition), and the debtor does the prohibited act. For
example, violating a restraint of trade clause.
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