Breach of contract

What is a breach?

A breach occurs when one party to a contract fails to perform their obligations as required in terms of the contract. The debtor is the person who must perform. The creditor is the person to whom performance is owed.

What is mora debitoris and also the requirements?

When the debtor fails to perform on time. The requirements for mora debitoris to exist includes, performance that must be due, performance is still possible, debtor fails to perform on time. There are 2 types of mora debitoris: mora ex re: time for performance is fixed in the contract, automatically in mora when late. Mora ex persona: no fixed date, creditor must demand performance.

What are the legal consequences for mora debitoris?

They may have to pay damages. They can be held liable for lass caused by delay. Creditor may cancel the contract.

What is mora creditoris and what is the requirements?

When the creditor is in breach because they unreasonably fail or refuse to accept performance on time. The requirements include: the debtor must be willing to perform. The debtor’s performance must be due. The cooperation of the creditor must be necessary for the debtor to perform on time.

What are the legal consequences of mora creditoris?

The debtor is not in breach. The risk may pass to the creditor. The debtor may be able to cancel the contract. Debtor can sometimes claim damages.

What is positive malperformance?

When a party performs, but does so improperly, defectively or in the wrong manner. The breach here is incomplete.

What are the different types of positive malperformance?

Defective performance: where it is poor quality.

Incomplete performance: only part of the job done.

Wrong manner of performance: done incorrectly.

What are the legal consequences of positive malperformance?

You can claim damages. You can possibly cancel the contract or you can demand proper performance.

What is repudiation?

When one party to the contract makes it clear, by their words or conduct that they no longer intend to be bound by the contract and without any legal justification.

What is prevention of performance?

When the performance of one party becomes impossible due to their fault or the fault of the other party. The party at fault is in breach. Due to the fault element, this does not qualify as an objective impossibility, therefore, it is a breach and not an impossibility.