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Breach of contract

i Types of breach

South African law recognises four different types of breach, given below.

Late performance or mora

A party is in mora when:

  1. the debt is due and enforceable, but performance is not delivered on time;
  2. the breach is due to their fault; and
  3. the performance remains objectively possible.
Repudiation

Repudiation is behaviour by a party that clearly and unequivocally indicates that the party is not going to honour its obligations under the contract and does not intend to be bound by the contract.

Repudiation occurs when:

  1. there is conduct indicating a refusal to perform;
  2. there is no justification for a refusal to perform; and
  3. the other party has performed.

The innocent party must then make an election as to whether it intends to accept the repudiation and cancel the contract, or to hold the breaching party to the contract (in which case the innocent party will also need to indicate that it is willing to perform). As will be explained further below, the innocent party may also claim for any damage it has suffered, regardless of this election.

Prevention of performance

This breach occurs in instances where a party makes performance of the obligations under the contract impossible. The requirements for such a breach are:

  1. the performance must be objectively impossible; and
  2. the breaching party must be at fault.
Defective performance

This occurs when defective performance is delivered by a party to the contract.

The party alleging that a breach has occurred bears the onus of proving, on a balance of probabilities, that the other party has breached the contract.