Mr Alfred Marimira
CHAPTER 3
TERMINATION OF CONTRACTS AND REMEDIES
Contractual agreements can be terminated in a variety of ways:
• Agreement
• Operation of law
• Breach
3.1 Termination Through Breach
Breach can be through a variety of ways but it simply involves conducts, which are inconsistent with proper performance of the agreement. It’s a violation of a material aspect of the agreement – an aspect that goes to the root of the contract.
3.1.1 Repudiation
Where the debtor (the person to whom performance is due) shows a clear intention to be no longer bound e.g. a house that has been let to A by the lessee is re-let to B, or a situation of double sale of a car. The creditor could accept repudiation and sue when the time of performance is due. Alternatively he can refuse the repudiation and sue for specific/exact performance originally envisaged in the contract by the parties.
Damages are the monetary equivalents to performance. They constitute the surrogate to specific performance. Specific performance is usually given at the discretion of the courts – on the basis of specific consideration the courts may refuse to grant specific performance.
3.1.2 Mora
Apart from repudiation there is also mora – delaying performance without lawful excuse where time is a material aspect of performance e.g. if the time within which performance is clearly defined (within 7 days). Commercial agreements are accompanied by lex commissoria (foreclosure or forfeiture). A forfeiture clause is a penalty clause, inasmuch as a foreclosure. Whereas a lex commissoria is also a penalty clause in an agreement, which empowers to cancel the agreement and impose a penalty, in the event of breach of contract e.g. delivery dates.
Apart from the defined time of performance the debtor can also be in mora if time is of essence – when it is clear to a reasonable person that performance has to be rendered without undue delay e.g. Munashe telephones Cannan a plumber to fix a leaking
TERMINATION OF CONTRACTS AND REMEDIES
Contractual agreements can be terminated in a variety of ways:
• Agreement
• Operation of law
• Breach
3.1 Termination Through Breach
Breach can be through a variety of ways but it simply involves conducts, which are inconsistent with proper performance of the agreement. It’s a violation of a material aspect of the agreement – an aspect that goes to the root of the contract.
3.1.1 Repudiation
Where the debtor (the person to whom performance is due) shows a clear intention to be no longer bound e.g. a house that has been let to A by the lessee is re-let to B, or a situation of double sale of a car. The creditor could accept repudiation and sue when the time of performance is due. Alternatively he can refuse the repudiation and sue for specific/exact performance originally envisaged in the contract by the parties.
Damages are the monetary equivalents to performance. They constitute the surrogate to specific performance. Specific performance is usually given at the discretion of the courts – on the basis of specific consideration the courts may refuse to grant specific performance.
3.1.2 Mora
Apart from repudiation there is also mora – delaying performance without lawful excuse where time is a material aspect of performance e.g. if the time within which performance is clearly defined (within 7 days). Commercial agreements are accompanied by lex commissoria (foreclosure or forfeiture). A forfeiture clause is a penalty clause, inasmuch as a foreclosure. Whereas a lex commissoria is also a penalty clause in an agreement, which empowers to cancel the agreement and impose a penalty, in the event of breach of contract e.g. delivery dates.
Apart from the defined time of performance the debtor can also be in mora if time is of essence – when it is clear to a reasonable person that performance has to be rendered without undue delay e.g. Munashe telephones Cannan a plumber to fix a leaking