Consequences/Remedies for Repudiation of Contract
The aggrieved party has an election of remedies to cancel or uphold the contract.
If the party accepts the repudiation then the aggrieved party is merely exercising his
right to rescind the co
Mora creditoris is applicable where there is a failure to co-operate/to receive
performance/to make performance possible by the debtor. It involves the culpable
failure of a creditor to discharge the duty to co-operate when such a duty is
Mora ex persona
Where no time for performance has been stipulated (expressly or impliedly), mere
delay by the debtor in performing cannot automatically result in mora. The creditor must
place the debtor in mora by demanding (interpellatio) that he perform
Usually a contract is followed by proper performance and the obligations cease.
However, at times obligations are not fulfilled as intended and then breach of contract
comes into play.
It is important to deal with the situations that a
De Wet Mora Ex Persona Case: doubly wrong case
No mora: can it be said that the word urgent is the basis for a tacit stipulation that
performance must take place within 4 months? SA law has an unsatisfactory test for
tacit time clauses. SA law adopts t
It is unclear whether or not fault is an element of positive malperformance. The debtor
can avoid liability by showing malperformance was caused by factors beyond the
debtors control. But where parties to a sale agree that risk shall pass to purchas
PREVENTION OF PERFORMANCE
Definition: any conduct by which a party renders performance impossible after
conclusion of the contract. The breach may occur before the date for performance, on or
This is a type of anticipatory breach. The breach can oc
Termination of mora
The purging of mora is possible. If the debtor tenders proper late performance [he is
already in mora] the creditor is obliged to accept that performance unless he has already
cancelled the contract or there is a lex commissoria. This
PICC list of factors [Unidroit Principles of International Commercial Contracts]
1. The non-performance substantially deprives the aggrieved party of what he was entitled
to expect under the contract unless the aggrieved party could have foreseen such a
1) eed to go to court to invoke the exception.
Types of breach
Under the influence of De Wet, there is a distinction between different types if breach. De
Wet thought there were 5 categories of breach, which some courts follow.
1. Positive malperformance
This is another type of anticipatory breach.
In the case of Hochster v De La Tour 1983, a young man wanted a tour guide to show
him around England. The tour was booked in advance and a few months before the
departure the tourist told t
Test for Repudiation of Contract
Did the party accused of repudiation act in such a manner as to lead the reasonable
person to believe that he does not intend to fulfill, or completely fulfill, his part of the
The test is an objective test. You