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Breach and termination of contract
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Definition of obligation, when there is a breach of contract, legal consequences for breaching. when termination occur, requirements for termination.
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20. Lesson 20Tuesday, 8 March 2022 09:11
BREACH OF CONTRACT AND TERMINATION
Obligation: it can be defined as a
○ transfer of property: use effect - the right is transferred as soon as the
agreement exist, with a simple agreement (no exchange of performance). But
you must manifest your consent (ex payment), otherwise the contract may be
considered voidable - the agreement must be legally manifested (cardinal
requirements must be fulfilled)
○ formal duty that the parties have to perform: obligation effect —> the party
has to look towards a future where the performances will be fulfilled - the
party propose a program of obligations and counter obligation. There is not an
automatic effect (ex. Construction contract).
—>Obligations and counter obligations are the essence of the contract
In the latter case we could incur in to the breach of the contract = failure without
law excuse, to perform a contractual obligation
When talking about the single obligations, the term fulfilment is used. When
referring to the set of all the obligation, “breach” is used. But they are considered
synonyms: when an obligation is unfulfilled the contract is breached.
When the breach of contract happens:
○ Defective performance: the performance is not perfect and there is a partial
unfulfillment —> the party must be compliant to the obligations in their
entirety (quality, quantity, place)
○ Late performance: one party is late in performing (time)
Ex. If a good is delivered with 3 days of delay it’s a breach of contract and i can
ask for damage compensation (if I’m a hospital 3 days can mean a lot)
○ Refusal to perform:
§ A party intentionally refuses to perform
§ A party is unable to perform because of a self-responsibility in this
condition (ex. He got rid of the goods he should have sold to me)
§ A party is unable to perform because of an external situation (an
extraordinary event that I cannot control - natural, political …). In this
case there is a breach of contract but i am not considered
responsible—> “force major” “cause di forza maggiore”
Ex. Eu Law
Art. 8:103 Fundamental non-performance - A non-performance of an obligations
fundamental the contract if:
(a) strict compliance with the obligation is of the essence of the contractor
(b) the non-performance substantially deprives the aggrieved party of what it was
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