Fundamental, and ‘Anticipatory’ Breach and the Impact of ‘Rescission’

Australian Bar Review, 36 1: 18-30

Posted: 26 Jun 2015

See all articles by Lee Aitken

Lee Aitken

The University of Hong Kong - Faculty of Law

Date Written: 2012

Abstract

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

Aitken, Lee, Fundamental, and ‘Anticipatory’ Breach and the Impact of ‘Rescission’ (2012). Australian Bar Review, 36 1: 18-30. Available at SSRN: https://ssrn.com/abstract=2622790

Lee Aitken (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://hub.hku.hk/rp/rp01235

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