Chapter 10 Forms of breach of contract
Breach due to impossibility
•
•
One of the parties makes performance of the
contract impossible.
The debtor makes his own performance impossible.
o Blameworthy behaviour
o See case study – Contract to deliver ten helicopters
• The creditor makes it impossible for the debtor to
perform.
o See case study – Halona destroys her laptop computer in a
fit of rage
Commercial Law – Fresh Perspectives 3e ISBN 978-1-485-70209-2 (print) ISBN 978-1-485-70212-2 (epdf) © Pearson South Africa (Pty) Ltd 2019
Chapter 10 Forms of breach of contract
Breach due to repudiation
•
•
•
•
One party indicates that he will not honour a
contract.
Creditor receives notification, expressly or
tacitly, that the debtor will not honour her
obligations in terms of the contract.
There is also no legally valid reason for this
refusal.
This amounts to a breach of contract called
repudiation.
Commercial Law – Fresh Perspectives 3e ISBN 978-1-485-70209-2 (print) ISBN 978-1-485-70212-2 (epdf) © Pearson South Africa (Pty) Ltd 2019
Chapter 10 Forms of breach of contract
Breach due to malperformance
• One of the parties to an agreement
performs in a way that is contrary to the
agreed terms.
• The debtor performs, but in an
unacceptable way.
• The debtor may, for example, tender
performance in a defective or incomplete
way.
Commercial Law – Fresh Perspectives 3e ISBN 978-1-485-70209-2 (print) ISBN 978-1-485-70212-2 (epdf) © Pearson South Africa (Pty) Ltd 2019
Chapter 10 Forms of breach of contract
Breach due to delay in performance by the
debtor
• Mora debitoris – default by the debtor
• What happens if the contract does not
specify a time for the debtor’s
performance?
o This would depend on the circumstances of the
contract.
• What would be a ‘reasonable’ time for
performing?
o Some contracts would require urgent
performance.
Commercial Law – Fresh Perspectives 3e ISBN 978-1-485-70209-2 (print) ISBN 978-1-485-70212-2 (epdf) © Pearson South Africa (Pty) Ltd 2019
Chapter 10 Forms of breach of contract
Breach due to delay in performance by the
creditor
• Mora creditoris – default of the creditor
o The time for the debtor to perform must have
arrived.
o Performance must be possible.
o The debtor must have tendered proper
performance to the creditor.
o The creditor must have failed to cooperate,
thereby delaying performance on the part of the
debtor.
o The default must be due to the fault of the
creditor.
Commercial Law – Fresh Perspectives 3e ISBN 978-1-485-70209-2 (print) ISBN 978-1-485-70212-2 (epdf) © Pearson South Africa (Pty) Ltd 2019