Forms of Breach
Parties to a contract must respect their agreement + perform all the obligations that it
imposes upon them (pacta sunt servanda)
- Failure to do so = breach of contract.
Specific forms of breach recognised in our law:
- Debtor culpably fails to make timeous performance of their obligations (mora
debitoris)
- Creditor culpably fails to cooperate timeously with the debtor so that the latter
may perform their obligations (mora creditoris)
- Debtor does perform, but in a defective or incomplete manner (positive
malperformance)
- Either party indicates an unequivocal intention not to honour the agreement
(repudiation); and
- Either party renders performance of the contract impossible (prevention of
performance).
Positive malperformance relates to the content of the performance made; two forms
of mora relate to the time of the performance + are sometimes grouped together
under – ‘negative malperformance’.
- Likewise, repudiation + prevention of performance are often classed together as
forms of anticipatory breach – both forms of breach can be committed prior to the
stipulated time for performance.
Various forms of breach may overlap, i.e. where the debtor’s delay in performance is
accompanied by a refusal to perform
- Innocent party is entitled to the remedies available i.r.o. either form of breach
The remedies for breach are aimed either at the fulfilment or at the recission of the
contract. In general, where the breach is sufficiently serious to merit recission, the
innocent party may either:
- Uphold the contract + insist on its fulfilment by claiming either specific
performance or, in appropriate cases, the financial equivalent of such
performance; or
- Rescind the contract, tender the return of the other party’s performance + claim
restitution of any performance that they might already have made themselves.
If parties are still worse off financially because of the breach, they are entitled to
compensation in the form of damages for breach of contract.
,Mora debitoris
Failure of a debtor, without lawful excuse, to make timeous performance of a positive
obligation that is due + enforceable + still capable of performance in spite of such
failure.
Distinguished from other forms of Breach
Consists essentially in an omissio (failure to perform timeously), it can occur only
i.r.o. a positive obligation (obligatio faciendi)
A debtor who acts in breach of a negative obligation (obligatio non faciendi) is guilty
of positive malperformance, rather than mora, if they make a performance that’s
incomplete or defective in some respect.
A creditor may reject imperfect performance + demand proper performance within a
reasonable time, in which case a failure to comply will place the debt in mora.
- If such imperfect performance is made after the debtor’s already fallen into mora,
the creditor could elect to treat the breach as either mora or positive
malperformance.
If the debtor’s delay or default renders performance impossible – form of breach
involved is prevention of performance.
- i.e. where a man hires a suit to wear to his wedding and it is delivered a day late).
Mere delay in performing an obligation shouldn’t be construed as a repudiation of the
contract, but where the delay is accompanied by words or conduct evidencing an
intention not to honour the obligation, such as a denial of liability or a refusal to
perform, the creditor may elect to proceed on the basis of either mora debitoris or
repudiation.
Requirements
Debt must be due and enforceable
Time for performance must have been fixed, either in the contract or by a subsequent
demand for performance, and the debtor must have failed to perform timeously; and
Such failure to perform on time must be without lawful excuse.
Due and enforceable
A debt is due and enforceable when the creditor has a valid right to claim
performance forthwith + the claim cannot be defeated by any valid defence.
In the absence of a contrary agreement – generally the creditor may demand
performance immediately on conclusion of the contract, or where that’s impossible or
, not practical, as soon thereafter as may reasonably be expected in the
circumstances.
- Thus, e.g. a purchaser of a book may usually insist on immediate delivery
whereas the purchaser of a house would have to allow a reasonable period for
registration of transfer to occur.
If the parties have agreed on a time for performance or have made the duty to
perform depend on the fulfilment of a suspensive condition, the debt is obviously not
due until the arrival of the stipulated time or the fulfilment of the condition.
- There can be no question of mora where the debt has been extinguished (i.e. by
prescription), or where the debtor’s duty to perform is dependent upon the
creditor doing something first.
In the case of reciprocal contracts, the general rule is that the parties must perform
simultaneously; thus, a creditor who wishes to enforce a debt must themselves either
perform or tender to perform their own reciprocal obligation before demanding
performance from the debtor.
- Otherwise their claim may be defeated by the exceptio non adimpleti contractus
Failure to perform timeously
Timeous performance presupposes certainty as to the time for performance.
- Thus, although a debtor is liable to perform as soon as their debt has become
due, failure to do so cannot constitute mora unless or until a definite time has
been fixed for performance, + that time has arrived.
- Time for performance may be fixed by agreement in the contract itself, or
unilaterally by a subsequent demand for performance.
- A distinction is accordingly drawn between 2 forms of mora debitoris: mora ex re
and mora ex persona
Mora ex re: parties have expressly or impliedly stipulated a time for performance in
their contract, a culpable failure by the debtor to perform on or before the due date
automatically places them in mora (ex re), without the need for any intervention by
the creditor. (Dies interpellat pro homine – the day makes the demand on behalf of
the man)
- For this result to follow, the stipulated time must be, not only certain to arrive, but
also certain as to when it will arrive (dies certus an ac quando)
- The fulfilment of a suspensive condition, or the arrival of an uncertain day which
was certain to arrive (i.e. ‘when X dies’), may render the debt due but cannot give
rise to mora without a subsequent demand by the creditor.
- The time for performance is fixed by implication when it’s clear from the contract
itself, or from admissible evidence of the surrounding circumstances, that the
