Breach of Contract

Graham v United Turkey Red

- G paid on commission of selling for UTR - G also sold for other companies - G in breach of restrictive covenant - UTR did not give G his commission - G could not sue for he was in breach - restrictive covenant

Bank of East Asia v Scottish Enterprise retention

- remedy of retention of performance available only where the obligations in question were the counterparts of each other. where obligations are contemporaneous. Cannot carry out a remedy of retention where obligation has been fulfilled.

Ferguson v Forster

Forster was a former partner to the firm. He was imprisoned for embezzlement. He continued to claim his pension despite termination of contract. The contract he had was 10 years pension payment to former payment. Because contract terminated, could not claim these payments. Cannot leave a contract and then sue cannot sue when u are in wrong - mutuality of contract

Macari v Celtic FC retention

Macari new manager New boss sacked Macari for breach of contract - not attending and living outwith the 12km restriction from the club. Macari claimed that the club tried to push him out and thus was in violation of mutual trust and confidence thus justifying his breaches. Macari was prima facie in breach, and Celtic were stating the obligations of their contract with Macari, because Macari continued to claim his salary he was obliged to comply with the contract, thus retention of the obligation to live within 12km radius was not the fault of C but M.

Photo Production Ltd v Securicor Transport

PP hired a security guard for overnight watch of factory as film is highly flammable. Security guard started a fire to keep himself warm, caught the factory and it was destroyed. The contract had an exclusion clause where liability of damages would be limited or non-existent for each party. this clause was still alive despite the contract being rescinded for at the time of creation it was made for the purpose of a breach of contract, and because the security guard had no previous related convictions to arson - no liability to pay damages.

Wade v Waldon failure to follow instructions

Wade was to send 'bill matter' to Waldon - i.e. advertising for the coming weeks before the performance. He did not do this. Waldon rescinded the contract on this basis. Held that this was not at root of contract and not sufficient to rescind on this; actual performance was at root, Waldon was liable to pay damages to Wade.

Blyth v Scottish Liberal Club Honest material breach

an honest material breach does not save it from being a material breach. Blyth believed he did not have to obey orders of SLC for he believed it was finished with, turns out he was still under a duty to. Rescind on the grounds of an honest material breach.

Defective Perfomance as grounds of rescission by material breach

can be a minor defect - SOGA1979

2 general methods of dealing with a breach

court - costly self-help remedy/defence remedy -- retention - temp suspend to make other comply -- rescission - completely terminate contract

self help remedy is risky

easy to jump to conclusions. If you get it wrong and rescind a contract where it is not under grounds of rescission, the prima facie wrongdoer will be liable to claim damages from person who rescinded.

rescission

grounds: preferably be material, not trifling. intimation is ESSENTIAL should go to root of contract (not 100% always the case)

where a contract is void

have to enrich and return goods where necessary.

what constitutes a breach?

non-compliance/refusal to perform defective goods/service non-delivery of goods

termination

perfectly valid contract up until termination

termination is

prospective - future may be restitution sometimes

void/voidable is

retrospective - past

Graham v United Turkey Red rescission however, UE claim for G restrictive covenant

went to root of contract selling for rival company out-with contract could claim for Unjustified Enrichment(G) for UTR had enriched from his performance for them, could not sue within contract though, just UE.

specific implement cumulative judicial remedies

where u claim for additional damages - cannot do so when you have terminated contract. Say, you purchase goods with the intention of selling for a profit, the goods are not delivered, thus you do not make your profit: claim damages as well as for non-delivery/breach

Mutuality of contract

where you either both comply or if one doesn't you do not have to either