Breach of contract

Breach of contract Mora debitoris Mora creditoris Positive malperformance Repudiation Prevention of performance

Mora debitoris “The debtor is late” Debtor fails to perform on time Two requirements Performance delayed Delay is due to the fault of the debtor Two types of mora Mora ex re Mora ex persona

Failure to perform on time Mora ex re – where a time for performance has been set and debtor fails to perform, he is automatically in mora Mora ex persona – where no time for performance has been set & creditor then demands performance within a reasonable time & debtor fails to perform

Delay due to debtor Delay must be due to the fault of the debtor Can be intentional or negligent

Mora creditoris The creditor is late

Requirements for mora creditoris Performance must be dischargeable Debtor must tender performance Creditor must fail to co-operate & thereby delay performance Default must be due to the fault of the creditor

Consequences of mora Mora debitoris Mora creditoris Creditor entitled to remedies for breach of contract Debtor’s duty of care is reduced Debtor entitled to any counter performance due by the debtor

Positive malperformance Debtor renders or tenders defective performance Debtor does something not allowed in agreement

repudiation Behaviour by a party which indicates that they have no intention of honouring the contract Denial of the contract

Prevention of performance Conduct by a party which renders their own performance impossible Eg: I set alight the car that I have sold to you before I deliver it

Remedies for breach Specific performance Interdict Cancellation Damages

Specific performance Generally not granted Where impossible for debtor to perform Where damages would be adequate remedy Where it would be unfair to defendant Where performance would involve personal relationship

cancellation If breach material – may cancel and claim damages Where breach not material – damages only, no cancellation Measure of damages the same in both cases – put plaintiff in position he would have been if contract had been properly performed

Proving damages Loss must have been a natural & direct consequence of the breach Liability limited to loss that would have reasonably been forseen Loss must be measurable in money Loss incurred or gain not made Plaintiff must prove his damages

Duty to mitigate The injured party has a duty to mitigate their damages