1. Theme 3 : Remedies for Breach of Contract

2. Remedies By operation of Law Agreed remedies Specific performance
Natural remedy... Leads to fulfilment of the contract.
Cancellation
Drastic remedy... Nullifies the original contract.
Damages
Combination remedy... Applied in combination with above remedies.
Agreed remedies
Remedies by operation of law have to meet certain requirements and implementation could be problematic.
Parties agree on remedies directed at bypassing the practical problems strict legal requirements of remedies by operation of Law.
Eg. Acceleration clause; lex commissoria (cancellation clause); penalty clause.
Agreed remedies usually exclude common law remedies unless the contract provides for it.

3. Claims for fulfilment of contract
Interdict
An order of court which restrains the party from performing the forbidden act.
Requirements:
A clear right must exist.
Infringement upon right.
No other remedy available.
Specific performance
Force performance as agreed, unless it appears to be an impractical solution eg. Impossibility of performance.
Debtor can resist an order for specific performance by raising the exceptio non adempleti contractus.
Where parties have to perform simultaneously. Cannot claim performance is own performance is still due.
Eg. Cash sale vs Credit sale.
Delivery of partial performance? Divisible performance vs Indivisible performance.

4. Acceleration clause Divisible performance Indivisible performance
Withhold own performance in respect of performance still outstanding .
Indivisible performance
Reject delivered performance and claim specific performance – no counter performance until performance by plaintiff is proper.
Cancel if malperformance is substantial enough.
If malperformance is not substantial enough:
Should counter-performance be delivered?
BK Tooling v Scope Precision, 1979
Is defendant utilising the incomplete performance.
Circumstances exist in favour of plaintiff.
Reduced contract price.
Acceleration clause
If debtor falls in arrears – full outstanding becomes due and payable.
Whether to invoke is the choice of the creditor.

5. Cancellation Lex commissoria Mora debitoris Mora creditoris
Circumstances are set out when a contract may be cancelled. Often contains specifications and requirements to be met before cancellation can take place.
Mora debitoris
Time is of the essence.
In mora ex re and time is of the essence.
Creditor acquires the right to cancel.
Time is not of the essence, in mora ex re – performance must be demanded and state than failure to perform will result in cancellation.
Mora creditoris
Debtor acquires right to cancellation.

6. Positive Malperformance
Malperformance must be substantial – cannot reasonably be expected to keep the performance.
Malperformance not substantial – retain defective performance and claim damages.
A right to cancellation cannot be acquired as above.
Repudiation
May be ignored and contract upheld.
Acceptance of repudiation cancels the contract.
Repudiation must be substantial enough to allow cancellation eg. No perfromance vs partial performance.
Performance is prevented
Specific performance not possible. (Divisible and indivisible performance)
Only option cancellation and damages.

7. Time, method and consequences of cancellation
Right to cancel my be kept in reserve and exercised within a reasonable time.
Right to cancelation my be waived by choosing to uphold the contract, claim specific performance, etc.
No formalities are required for cancellation other than communication of cancellation to the other party.
After cancellation restitution has to take place. Debts due and payable are not affected by cancellation.

8. Damages
Combination remedy combined with other remedies.
Party placed in the position he would have been in had breach of contract not taken place.
Principles in the absence of a penalty clause:
Loss due to breach of contrcat has to be proven by the plaintiff.
Only patrimonial loss can be recovered.
Extent of damages must be proven.
“Once and for all - rule”.
Beneficial side effects must be taken into account.
Plaintiff must mitigate his losses.
Causal link between breach and damages must be proven.
Damages calculated depends on the nature of the interest that the innocent party wishes to recoup:
Expectation interest : Compare position due to breach with position he would have been in.
Restitutionary interest: Contract cancelled and complete restitution claimed.
Reliance interest: Position party would have been in had he not incurred expenses with the view of successfully executing the contract.

9. General damages Special damages Penalty clauses
Damages and losses that flow naturally and generally from breach of contract.
Special damages
Damages and losses that flow naturally and generally from direct damages caused by breach of contract.
Can only be claimed if parties agreed to it.
Penalty clauses
Party acting contrary to contractual obligations are liable to pay the penalty.
Contains a trigger, stating when penalty will become due and enforceable.
Penalty must also be described clear and certain. The amount could exceed the real damage and need not be proven.

10. Termination of the Contractual Relationship
Performance
Contract
Set-off
Merger
Impossibility of performance
Rehabilitation after sequestration
Prescription

11. Performance
Debtor / representative must perform to the creditor, unless it is required in terms of the contract that the debtor performs personally.
Complete, non-defective performance must be delivered as agreed upon in the contract. Partial performance does not extinguish his obligations.
Place an time of performance can be specified by the parties. Day = until 24h00; During office hours = 17h00; pay within 14 days = first day excluded; etc.
Allocation of payments:
Interest before capital
Enforceable debts before unenforceable debts
Certain debts before uncertain debts
More onerous debt before less onerous debt
Older debt before newer debt
Equal debts = proportionally

12. Contract - New contract terminates the old contract.
Release:
Bilateral act between parties. Creditor offers to release debtor of his contractual duties.
Compromise or settlement
Settlement of an existing dispute between the parties.
Contract is terminated and substituted by the new settlement contract. Original contract does not have to be valid.
Novation
A second valid contract is concluded with the intention of terminating and substituting the existing contract. Original contract must be valid.
Set-off
Requirements:
Debts of the same nature and equal in size.
Debts due and payable.
Liquidated (amount certain) debts.
Debts between same persons in same capacities.

13. Impossibility of performance
Merger
The same person becomes the debtor and creditor of the same debt.
Impossibility of performance
Impossibility without fault of the parties.
Assuming the risk of supervening impossibility will not relieve contractual duties.
Rehabilitation after sequestration
Discharges all debts which has arisen before sequestration, but does not release a surety from his obligations.
Prescription
Extinctive prescriptions – legal obligations are extinguished through lapse of time.
Acquisitive – ownership acquired after 30 years.
Weak prescription – debts become unenforceable after time but can still form the basis of sett-off or suretyship, but cannot be ceded.
Strong prescription – debt is extinguished after lapse of time. Sett-off, novation, cession, etc. becomes impossible.

14. Periods of prescription:
30 years
Debt secured by a mortage bond.
Judgement debt.
Tax debt.
Debt owed to the state regarding prospecting and mining of minerals, etc.
15 years
Debt to the state for money loan and sale/lease of land.
6 years
Debt arising from a bill of exchange / negotiable instrument.
Debt arising from notarial contract.
3 years
All other debt, unless otherwise provided.

15. Commencement,interruption and delay of prescription
Prescription commences on the day the debt becomes due or the creditor becomes aware of it.
Liablility acknowlegded
If debtor acknowledges his liability towards the creditor, prescription is interrupted and starts to run anew from the day of acknowledgement.
Service of process
Prescription interrupted when creditor serves process upon the debtor. Prescription runs from date of acknowledgement or judgement becomes executable.
Delay of prescription (par )
Circumstances or impediments can delay prescription:
Minor, etc.
Debtor outside the Republic
Debtor and creditor are partners and debt arose from partner relationship
Creditor is a juristic person and debtor member of it’s governing body
Debt subject to dispute subjected to arbitration
Debt claimed from deceased estate
Debtor or creditor deceased and executor not appointed.

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