On 1st June the D agrees to sing on 30th June On 10th June the D says that she

On 1st june the d agrees to sing on 30th june on 10th

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On 1st June, the D agrees to sing on 30th June. On 10th June, the D says that she does not want to sing. The anticipatory breach is on 10th June, whilst the actual breach is on 30th. If the plaintiff accepts the anticipatory breach is on 10th June, then the plaintiff has a duty to mitigate his loss on 10th June as the court will assess the market value on 10th June. If the plaintiff is reasonable in continuing with the contract, the court will assess the market value on 30th June. If the plaintiff is unreasonable in continuing with the contract, the court will assess the market value on 10th June when the plaintiff should have mitigated his loss. 4. If the innocent party intends to terminate the contract for breach, he must clearly communicate this intention to the party in breach of the contract. In Sim Chio Huat v Wong Ted Fun , the FC held that the stipulation as to time in the contract ceased to be of essence because of the respondents acquiescence and because he had allowed the work to continue under the agreement and had also requested for extra work not included in the agreement to be done. Relief/ Effect of breach 1. S. 40 provides that “when a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the
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promisee may put an end to the contract i.e. the contract is voidable at the option of the promisee. 2. In Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] , where the defendant breaches a condition, the plaintiff can terminate the contract and sue for damages or continue with the contract and sue for damages. 3. Note rescission for breach is different from rescission ab initio which arises in fraud, mistake etc. In rescission ab initio, the contract mistaken as never having come into existence, whereas in rescission for breach the contract has come into existence but has been put an end to or discharge. 4. In Yong Mok Hin , the FC held that in certain circumstances there may be restitution for breach under ss.65 and ss.66 . However, Prof Visu holds that ss.65 and ss.66 should not apply where the contract is terminated under s.40 because ss.65 and ss.66 deal with voidable and void contracts for fraud and mistake. For breach of a valid contract there is no undoing of everything to put things ab initio. 5. s.76 provides that a plaintiff who rightly rescinds for non-fulfilment of a contract can claim damages sustained. However, in Haji Ahmad v Abdul Ghani [1937], it was held that the plaintiff cannot claim compensation under s.76 if the contract is rescind on grounds of fraud or misrepresentation as they are not cases of non-fulfilment.
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6. For breach of less important terms (warranties), the plaintiff can only claim damages and not specific performance: Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996]. Breach (s.40) Repudiation Affirm Rescind ( Dream Property v Atlas Housing ) Rescission termination Condition Warranty ( Ching Yik Development ) Must you repudiate? Yes, it is part of the s.40. FC provides few ways to repudiate: (a) Expressly (b) By conduct (c) Automatic repudiation clause
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  • Winter '17
  • Daniel
  • FC

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