614 discharge through breach a breach of contract

  • No School
  • AA 1
  • 47

This preview shows page 43 - 45 out of 47 pages.

6.1.4 Discharge through breach A breach of contract occurs when one party actually fails to meet his or her obligations under the contract (actual breach) or, alternatively, intimates to the other that he or she will not perform those obligations when they fall due (anticipatory breach). In either case, if the breach goes to the core of the contract, the failure to perform constitutes a repudiation of the contract as a whole and the innocent party gets an election. He or she can either accept the repudiation — evidenced by the substantial breach — and bring the contract to an end or reject that repudiation and keep the contract on foot. If the repudiation is accepted the contract terminates and both parties are released from all future performance. If the contract is affirmed, it remains on foot and performance by both
Image of page 43

Subscribe to view the full document.

© Stephen Graw 2012 42 parties must continue. If the contract is affirmed but the party in default continues to default the innocent party can accept that continuing repudiation at any time and the contract will then terminate with the consequences outlined above. 6.1.5 Discharge by operation of law Contracts can also be terminated by operation of law. For example, if one party deliberately and fraudulently alters or cancels a document which records or evidences what the parties agreed (their contract) that alteration, if it is material, will discharge the contract at least in the sense that, thereafter, the party who altered or cancelled it will not be able to enforce it. 6.2 Remedies At common law breaches of contract are normally remedied by an award of damages. Damages are the normal remedy because, in most cases, the effects of the breach complained of can be adequately compensated for by payment of a sum of money. Where money is not an appropriate remedy, the common law is not really able to provide a totally just solution. In such cases, equity steps in with orders that are better designed to ensure that justice is done. These include orders for specific performance and injunctions (both aimed at enforcing the contract by ordering the party in default to do what the contract requires or to desist from doing something which it prohibits) and restitution. Exemplary (or punitive) damages are not usually awarded for breaches of contract in Australia — though in recent times such awards have occasionally been made for both tortious behaviour and breaches of legislation (such as the Competition and Consumer Act ). 6.2.1 Principles underlying damages Damages in contract are compensatory. They are awarded to compensate an innocent party for his or her actual losses — at least insofar as money can do so — and they are intended to put the aggrieved party in the position that he or she would have been in if the contract had been performed as agreed .
Image of page 44
Image of page 45
  • Fall '19

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern

Ask Expert Tutors You can ask 0 bonus questions You can ask 0 questions (0 expire soon) You can ask 0 questions (will expire )
Answers in as fast as 15 minutes