Breach, Repudiation and Excuse: every key term you need (+ practice quiz)
25 flashcard terms for Contracts Topic 7, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
A breach so material and uncured that it discharges the injured party's remaining duties and permits immediate suit for all damages, past and future, in a single action.
Partial breach
A breach that leaves the contract alive, allowing recovery of damages for the defective performance while both parties remain obliged to continue performing.
Anticipatory repudiation
A clear and unequivocal statement or voluntary act before performance is due showing that a party will not or cannot perform, giving the other side an immediate claim.
Hochster v. De La Tour
A courier hired for a future tour could sue at once when the employer cancelled in advance, establishing that repudiation gives an immediate cause of action.
Election after repudiation
The aggrieved party may treat the repudiation as a total breach and sue at once, or await performance for a commercially reasonable time, but must not increase avoidable losses.
Retraction of repudiation
A repudiating party may withdraw the repudiation until the other party sues, materially changes position, or indicates that it treats the repudiation as final.
Adequate assurance of performance
When reasonable grounds for insecurity arise, a party may demand assurance in writing and suspend its own performance, treating failure to respond in a reasonable time as repudiation.
Reasonable grounds for insecurity
Objective facts such as missed payments, insolvency rumours, or defective deliveries on other contracts that justify a demand for assurance rather than mere subjective anxiety.
Repudiation by inability
Conduct rendering performance impossible, such as selling the unique subject matter to another buyer, which operates as a repudiation without any express refusal.
Impossibility
An objective excuse where performance cannot be rendered by anyone, classically through destruction of the subject matter, death of a person essential to performance, or supervening illegality.
Taylor v. Caldwell
The destruction of a music hall by fire excused both parties, replacing the older rule of absolute contractual duty with an implied condition of continued existence.
Impracticability
A modern excuse where performance becomes far more burdensome due to an event whose nonoccurrence was a basic assumption, and the risk was not allocated to the disadvantaged party.
Basic assumption requirement
The supervening event must upset an assumption on which the deal rested; ordinary market shifts and cost increases are risks the parties are presumed to have assumed.
Increased cost as excuse
Rising costs alone rarely excuse; courts demand an extreme and unreasonable difference, and mere loss of anticipated profit is never sufficient.
Transatlantic Financing v. United States
Closure of the Suez Canal did not excuse a shipper, since the alternative route was commercially practicable and the added expense was not extreme enough.
Death or incapacity of a key person
Performance of a personal service contract is excused when the individual whose skill was bargained for dies or becomes unable to perform.
Supervening illegality
A later change in law that makes performance unlawful discharges the duty, while a law existing at formation instead raises a question of initial illegality.
Frustration of purpose
An excuse where performance is still possible but a supervening event has destroyed the value of the exchange to one party, and the frustrated purpose was known to both.
Krell v. Henry
The coronation cases: renting a room to watch a cancelled procession was excused because the shared purpose of the rental, though not performance itself, had been destroyed.
Force majeure clause
A negotiated provision listing events that suspend or excuse performance, which displaces the default doctrines to the extent its language covers the event.
Temporary impracticability
An excuse that only suspends duties while the obstacle lasts, reviving them afterwards unless performance then would be materially more burdensome than originally undertaken.
Partial impracticability under Article 2
When a seller's capacity is partly reduced by an excusing event, it must allocate remaining production among customers in a fair and reasonable manner and give notice.
Restitution after excuse
When a contract is discharged by excuse, each party may recover the value of benefits already conferred, preventing unjust enrichment from a partly performed bargain.
Mutual rescission
An agreement by both parties to discharge their remaining duties, supported by consideration in the surrender of each side's rights, provided performance is still outstanding on both sides.
Novation
A substituted contract that replaces a party by agreement of all three persons involved, discharging the departing obligor rather than merely delegating performance.