Affirmation
Affirmation

The following Commercial guidance note provides comprehensive and up to date legal information covering:

  • Affirmation
  • Affirmation and repudiatory breach
  • Anticipatory repudiatory breach
  • What is affirmation?
  • Affirmation of a continuing breach
  • The effects of affirmation
  • Limitations on affirmation
  • Affirmation where other remedies are available

Affirmation is an indication of the intention to continue with a contract. Affirmation may arise in the case of:

  1. a repudiatory breach of contract, or

  2. a misrepresentation which entitles the innocent party to rescind the contract

Affirmation and repudiatory breach

A repudiatory breach is a breach of contract that goes to the very core of the contract entitling the innocent party to treat the contract as being disregarded and to refuse to be bound by its terms. For more information, see Practice Note: Repudiation.

Where there is a repudiatory breach of contract, the innocent party has the following options:

  1. accept the repudiatory breach, treat the contract as at an end and seek damages, or

  2. affirm the contract and seek damages

  3. waive the breach by the defaulting party altogether, accept the defaulting party’s performance of the contract and lose its right to claim damages

Anticipatory repudiatory breach

The same options are available to an innocent party in the case of anticipatory repudiatory breach. An anticipatory breach occurs where one of the parties declares to the other, before the time for performance but after conclusion of the contract, their intention not to perform their contractual obligations. Not every declaration that a party will not perform an obligation is a repudiation. To be repudiatory, such a statement needs to go to the root