Breach of Contract: A Plea for Clarity and Discipline
(2018) 134 LQR 117-137
32 Pages Posted: 19 Jun 2018
Date Written: June 1, 2018
The author identifies an `anti-termination’ bias in the judicial classification of terms (and in some legislative intervention). The problems engendered by this bias are, first, a weakening of the innocent party’s protection in the face of breach; weakening of commercial discipline overall in the fulfilment of contractual undertakings; and the inability to advise with confidence on whether breach in particular instances will permit, or has permitted, a party to terminate the contract for breach. As the author concludes, the anti-termination bias is a denial of “bright-line” protection of the innocent party and it promotes an overall slackening of discipline by failing to insist on strict compliance with contractual obligations.
Keywords: Contractual breach, innominate term, conditions, certainty
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