What are the two types of Breach of Contract?
A contract can only be breached if it is a valid contract with all the essential elements. A breach occurs if either party fails to carry out their obligations under the terms of the contract. A breach can be:
- Anticipatory where the breach is communicated to the other party prior to performing the contract. Important dates in a contract are on creation as well as date of performance, an anticipatory breach occurs after creation but prior to performance as seen in Hoechester v De Le Tour 1853 this case involved Hoechester being hired as a courier in charge of a tour of the Alps in June, he received a letter in May stating his services were no longer required. It was held that there was a breach due to the destruction of expectation of performance, Hoechester was entitled to the immediate remedy. If you are the victim of an anticipatory breach you can withdraw/resile from the contract, seek a court order or perform your obligations and sue for damages.
- Failure to Perform If one party fails to carry out the obligations required of them under the contract then this is the repudiation of the contract and the other party can resile and sue for damages. If the contract is repudiated the other party does not have to fulfill their obligations under the contract. It is very important to note that any breach must be material to the contract and contracting parties need to be certain there is an actual breach before withdrawing from the contract as it may turn out that it is they who are in breach as seen in Wade vs Walden 1909 where Walden had been contracted to perform at a theatre by Wade. Following the contract formation Wade had contacted Walden to ask him to send some details of his act 14 days before his performance but he failed to do so resulting in Wade resiling and suing for damages however the court held that the breach was not material to the original contract and that Wade was now in breach of contract and Walden entitled to damages.
- To claim a material breach, it is wise to have all material aspects written into the contract i.e. any timeframe requirements to ensure all material aspects are included in the contract.