Question 2 OR (b)

Breach of contract; actual and anticipatory breach

6 marks

Time to write
About 12 minutes
Topic
Breach and remedies
Notes
Crux notes

Question

Question 2 OR (b) · 6 marks

What is meant by "breach of contract." Differentiate between an actual breach of contract and an anticipatory one.

Reworded from the university paper; the task is the same. The original paper belongs to the University of Delhi. See DU's question bank.

Before you write

Read off the question and its marks

12 minfor 6 marks

Read from the question

  • Differentiate betweenSet the differences out in a table, basis by basis, not as two separate essays.

Write it in this order

  1. Read; underline the asks; jot your points 1 min
  2. 1 Meaning of breach 1 mark 1 min
  3. 2 Actual breach 1½ marks 3 min
  4. 3 Anticipatory breach and its effect (s. 39) 2 marks 3 min
  5. 4 Differences 1½ marks 3 min
  6. Check: every ask answered, key terms underlined 1 min

Easy marks

  • Meaning of breach (step 1, 1 mark): a definition in one or two lines. It opens the answer, so it takes a minute or two.

Short on time? Keep step 1 short. Trim steps 2–4 evenly rather than skip one: each is capped at its own marks.

Try it first. About 12 minutes for 6 marks. Write it out, then open the solution.

Solution

Hover or tap a marked figure, like 72,000, to see how it is made and where else it appears.

Breach of contract. Breach means failure of a party to perform his obligation under a contract. It may be actual or anticipatory.

Actual breach. A party refuses or fails to perform his promise on the date fixed for performance, or fails or refuses to perform his obligation during performance. A promises B 100 bags of sugar, to be delivered on 1 February and fails to do so on that day: this is an actual breach.

Anticipatory breach. A breach before the time fixed for performance has arrived: the promisor refuses altogether to perform, or disables himself from performing, before the due date. It may be express (A, contracted to supply cotton on 14th August, writes on 30th July that he will not supply) or implied by conduct (A agrees to sell his white horse to B on 10th August, but sells it to C on 1st August). Under section 39, the promisee may then put an end to the contract and sue for damages at once, or may keep the contract alive and wait for the date of performance.

Differences:

BasisActual breachAnticipatory breach
TimeOn or after the due date of performanceBefore the due date
FormFailure or refusal to perform when dueExpress refusal, or conduct making performance impossible
RemedyImmediate right of actionPromisee may sue at once or wait for the due date
Options of the injured partySue for damages, or affirm the contract and seek performance where that remedy is availableRescind at once and sue, or keep the contract alive until the due date, at the risk that the promisor then performs or a supervening impossibility discharges it

Where the 6 marks sit

#ComponentMarks
1Meaning of breach1
2Actual breach1.5
3Anticipatory breach and its effect (s. 39)2
4Differences1.5
Total6
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