Q&As

Considering a scenario where Party A affirmed a breach of an intermediate term of contract by Party B, for fear that Party B would then serve notice to terminate the contract from which Party A was still benefiting, can it be argued that Party A has lost the right to claim for damages, even though it can easily quantify their losses?

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Published on LexisPSL on 20/03/2019

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • Considering a scenario where Party A affirmed a breach of an intermediate term of contract by Party B, for fear that Party B would then serve notice to terminate the contract from which Party A was still benefiting, can it be argued that Party A has lost the right to claim for damages, even though it can easily quantify their losses?
  • Affirmation and repudiatory breach
  • Classification of terms
  • Waiver
  • Damages

Affirmation and repudiatory breach

Practice Note: Affirmation provides that affirmation is an indication of the intention to continue with a contract. Affirmation may arise in the case of:

  1. a breach of contract, or

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

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

  1. accept the repudiation and terminate the contract, accepting the other party’s repudiation, thus bringing further performance under the contract to an end and entitling the innocent party to claim damages, or

  2. affirm the contract despite the breach, carrying on performing the contractual obligations and demanding the other party perform their obligations too; as with acceptance, the innocent party is entitled to claim damages

A repudiatory breach is a breach of contract that goes to the very core of the contract and gives the innocent party

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