5 FORMS OF BREACH OF CONTRACT

Transcription

1 CHAPTER 10 DEFAULT BY DEBTOR PREVENTION OF 5 FORMS OF BREACH OF DEFAULT BY REPUDIATION POSITIVE MAL

2 USED IN RELATION TO SPECIFIC OBLIGATION -NOT AS WHOLE WHERE OBLIGATIONS FROM BOTH PARTIES -WILL IN TURN BE DEBTOR & DEBTOR & DEBTOR HAS TO PERFORM OBLIGATION = ENTITLED TO

3 DEBTOR COMMITS BREACH OF (2) DELAY DUE TO DEBTORS FAULT MORA DEBITORIS DEFUALT BY DEBTOR (1) = DELAYED IN DEFAULT = IN MORA 2 x REQUIREMENTS

4 DEMAND NECESSARY IF SPECIFIED FOR CERTAIN DAY, BUT UNCERTAIN WHEN DAY WILL ARRIVE MORA DEBITORIS- POSSIBLE TO LATER STAGE IF TIME = LINKED TO -NOT IN MORA- PREVENTION OF - NO LONGER POSSIBLE DEBTOR IN MORAWHEN FAILS TO PERFORM BY CERTAIN DATE (MORA EX PERSONA) DELAYED (1) SPECIFIC DATE / TIME FOR STIPULATED - DEBTOR FAILS TO PERFORM ON TIME = IN MORA(MORA EX RE) MUST ALLOW DEBTOR REASONABLE TIME IN WHICH TO PERFORM (2) NO EXACT DATE - DEMAND BEFORE / ON CERTAIN DATE DATE MUST BE CERTAIN

5 BREACH OF ONLY WHEN PARTY TO CULPABLY, INTENTIONALLY / NEGLIGENTLY NOT HONOUR OBLIGATION IF DEBTOR WARRANTED - WILL BE BREACH OF -BY GIVING GUARANTEE -DEBTOR ASSUMES RICK OF DELAY DELAY DUE TO DEBTOR'S FAULT NO BREACH - CIRCUMSTANCES BEYOND CONTROL

6 ENTITLES TO REMEDIES FOR BREACH OF IN MORADEBTOR MAY NOT CLAIM TO BE RELIEVED OF OBLIGATION WHERE BECAME IMPOSSIBLE CONSEQUENCES OF DEBTOR'S FAULT EFFECT ON LIABILITY, SHOULD BECOME IMPOSSIBLE WHILE DEBTOR IS IN MORA IF IMPOSSIBLE AFTER IN MORA SUPERVENING POSSIBILITY OF -NOT HAVE EFFECT OF EXTINGUISING OBLIGATION SUPERVENING IMPOSSIBILTY OF EXTINGUISHES OBLIGATION - RELEASING DEBTOR FORM DUTY TO PERFROR

7 MORA IS DEFAULT BY 'S CO- OPERATION = REQUIRED FOR DEBTOR TO BE ABLE TO RENDER CAUSES DEBTOR'S TO BE DELAYED

8 DEFAULT MUST BE DUE TO FAULT OF (A) PERFORMAN CE MUST BE DISCHARGEA BLE NOT DISCHARGEABLE UNTIL ANY RELATED SUSPENSIVE CONDITION = FULFILLED / UNTIL TIME FOR NO EXACT DATE - DEBTOR DEMAND & SET DATE -IF NOT PERFORMED -MORA EX PERSONA ELEMENTS OF MORA IS (B) DEBTOR MUST TENDER PERFORMANC E EXACT DATE FOR NOT PERFORMED - MORA EX RE DEBTOR OFFER PROPER & REQUEST 'S CO- OPERATION (C) MUST FAIL TO GIVE CO- OPERATION & THEREBY DELAY IF = DEFECTIVE & REFUSE TO ACCEPT -NOT BREACH OF

9 IF EARLIER MORA = EXTINGUISED, LIABILITY FOR IT = NOT EXTINGUISHED (A) DEBTOR'S DUTY OF CAR = DIMINISHED IF IN MORA DEBTOR RESPONSIBLE ONLY FOR INTENTIONAL LOSS & LOSS OCCASIONED BY GROSS NEGLIGENCE (D) DEBTOR IN MORA- REMOVED BY SUBSEQUENT DEFAULT OF CONSEQUENCES OF 'S DEFAULT (B) RECIPROCAL AGREEMENTS - DEBTOR REMAINS ENTITLED TO DUE TO HIM REMAINS LIABLE FOR COUNTER- (C) SHOULD BECOME IMPOSSIBLE - OTHER THAN THROUGH INTENTION / GROSS NEGLIGENCE WHILE IN MORA DEBTOR RELEASED FROM OBLIGATION TO PERFORM OBLIGATIONS OF PARTIES NOT TERMINATED BY MORA IS DEBTOR ALSO REMAINS LIABLE FOR PERFORMANC E -PERFORM LATER

10 DEBTOR COMMITS ACT WHICH = CONTRARY TO TERMS OF (2) DEBTOR DOES SOMETHING MAY NOT DO ITO AGREEMENT = PERSON DO SOMETHING / REFRAIN FROM DOING SOMETHING POSITIVE MAL (1) DEBTOR TENDERS DEFECTIVE / IMPROPER 2 SITUTATIONS:

11 ANY BEHAVIOUR BY PARTY INDICATING THAT MAY NOT HONOUR OBLIGATIONS UNDER ENTITLES INNOCENT PARTY TO USUAL REMEDIES FOR BREACH OF REPUDIATION EXISTENCE OF = DENIED; TRIES TO WITHDRAW FROM WITHOUT JUSTIFICATION; GIVES NOTICE THAT CANNOT / WILL NOT PERFORM INNOCENT PARTY NOT EXPECTED TO WAIT & BEAR RISK THAT OTHER PARTY MIGHT NOT HONOUR OBLIGATIONS POSSIBLE TO REPUDIATE ONLY PART OF OBLIGATION

12 WHERE DEBTOR CULPABLY RENDERS OWN IMPOSSIBLE PREVENTION OF BY DEBTOR PAY DAMAGES INSTEAD OF PERFORMING DEBTOR NOT RELEASED FROM OBLIGATION

13 CULPABLY RENDERS BY DEBTOR IMPOSSIBLE -BREACH OF DEBTOR MUST BRING INTO ACCOUNT EXPENSES WHICH HAVE BEEN SAVED PREVENTION OF BY DEBTOR'S CAN NEVER BE RENDERED DEBTOR STILL ENTITLED TO 'S DEBTOR DEEMED TO HAVE DISCHARDED OBLIGATION