Law of Contract: Breach Last updated 14-May-2015

We think that, from the nature of the engagement to take a leading, and, indeed, the principal female part (for the prima donna sang her part in male costume as the Prince de Conti) in a new opera which (as appears from the terms of the engagement) it was known might run for a longer or shorter time, and so be a profitable or losing concern to the defendants, we can, without the aid of the jury, see that it must have been of great importance to the defendants that the piece should start well, and consequently that the failure of the plaintiff’s wife to be able to perform on the opening and early performances was a very serious detriment to them. This inability having been occasioned by sickness was not any breach of contract by the plaintiff, and no action can lie against him for the failure thus occasioned.
Per Blackburn J in Poussard v Spiers and Pond (1876) 1 QBD 410 at p.414.

Refusal or failure to perform without lawful excuse

Under a breach of contract is usually understood such state of affairs between the contracting parties when one of them without lawful excuse refuses or fails to perform his contractual obligations. A breach is also deemed to be committed when performance rendered by a party to contract is defective, or a party disables himself from performing.

If a party either renounce the contract or incapacitate himself before the date when performance is due, it is said that he commits an anticipatory breach of contract.

It is not always easy to establish breach of contract, as for example in case of unilateral contract when promisor promises to pay promisee a sum of money if he, promisee, without any obligation, will do something or refrain from doing it. In such contracts promisee will not be in breach if he never attempts to perform, because he has not promise anything. But if he starts his performance then such act will bide promisor thereupon. Moreover, having begun his performance promisee might also be held to have impliedly promised to complete it, so the contract would become bilateral.

If I say to another, "If you will go to York, I will give you 100£," that is in a certain sense a unilateral contract. He has not promised to go to York. But if he goes, it cannot be doubted that he will be entitled to receive the 100£. His going to York at my request is a sufficient consideration for my promise. So, if one says to another, "If you will give me an order for iron, or other goods, I will supply it as a given price"; if the order is given, there is a complete contract which the seller is bound to perform. There is in such a case ample consideration for the promise. So, here, the company having given the defendant an order at his request, his acceptance of the order would bind them.
Per Brett J in Great Northern Ry. v Witham (1873) L.R. 9 C.P. 16, at p. 19.

Sometimes there are reciprocal claims that another party committed a breach and in some cases the existence of breach itself is a matter of dispute. Moreover, not every failure to perform amounts to a breach of contract. Liability for breach of contract is generally strict, but it may also be is based on some misconduct or fault, such as fraud, want of due care or due diligence.

Liability for breach of contract is generally strict, meaning that there may be a breach of contract which involves no blameworthiness. It happens, in particular, when parties’ emphasis is on a pragmatic allocation of risk as, for example, is case with off-hire clauses in time charters. (see also Strict Contract). In other instances justification for strict liability is protection of a weaker side of the bargain as, for example, in case of implied liability of the seller to supply the goods of satisfactory quality, see section 14 of the Sale of Goods Act 1979.

In some instances this general rule gives way to requirement to exercise "due diligence" or carry out duties with "reasonable care and skill", which gives to both sides of the contract more flexibility in their contractual relationships. (See Concept of Due Diligence).

On the other hand breach may also be based on some misconduct or fault, such as fraud, want of due care or due diligence. On such occasions English law historically was restrictive to wrongdoer’s efforts to limit or exclude his liability for breach. In Davis v Garrett (1830) 6 Bing 716 Tindal CJ postulated the rule that no wrongdoer can be allowed to apportion or qualify his own wrong. At the end of the nineteenth century, this and several other decisions formed the law of marine deviation, which in its turn gave birth to the doctrine of fundamental breach. In short, both theories gave to an injured party a right to rescind contract when breach of fundamental condition occurred. In practice it usually disproportionally extended liability of defaulted side because no any contractual protection was available to it when contract had come to an end.

Leaving fundamental breach aside English law historically strictly limits ability to end contractual performance following breach of contract and holds the parties to their bargains by asking them to make their own provisions for events outside of their control (see Conditions and Warranties and Frustration). Depending on gravity of the breach injured party may repudiate contract bearing in mind that:

Each party to an agreement is entitled to performance of the contract according to its terms in every particular, and any breach, however slight, which causes damage to the other party will afford a cause of action for damages; but not every breach, even if its continuance is threatened throughout the contract or the remainder of its subsistence, will amount to a repudiation. To constitute repudiation, the threatened breach must be such as to deprive the injured party of a substantial part of the benefit to which he is entitled under the contract.
Decro-Wall International S.A. v Practitioners in Marketing Ltd [1971] 1 WLR 361, per Buckley LJ. at p. 380.

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