Fundamental, and ‘Anticipatory’ Breach and the Impact of ‘Rescission’
Australian Bar Review, 36 1: 18-30
Posted: 26 Jun 2015
Date Written: 2012
A party might repudiate its obligations under a contract by breaching it in various ways. The distinction between a fundamental breach, and a breach of an innominate term which yet also justiﬁes ’rescission’ for breach of the contract, is difficult to draw in practice, as recent cases reveal. Superadded to the complexities is the possibility of an anticipatory breach of a term which the ’innocent’ party may accept, or not as it wishes and which justiﬁes it in a ’rescission’ of the contract. In the latter case, it is a question whether or not that party still needs to manifest an intention, and ability, to perform its own obligations, and on this question the High Court authority is not clear. Recent authority discussed in the article demonstrates that these are difficult topics upon which minds may properly differ, and that the theoretical underpinning of the law could stand further elucidation by the High Court.
JEL Classification: K00
Suggested Citation: Suggested Citation