Contract Breach

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1.Introduction
Breach of contract is when one or both parties, who came to a mutual agreement, do not fulfil their contractual agreement i.e. interfering in the other party’s performance or non-performance by one or both parties. These are only two of the possible five forms of Breach of Contract. The five types of Breach of Contract will now be discussed in detail. 2.There are five different forms in which Breach of Contract can take place: a.Default of the debtor (mora debitoris)

i.Explanation
Mora Debitoris means that a debtor has failed to adhere to the contractual agreement in a certain time frame. Be it not making a payment or violating agreed conditions of the signed contract. There are two forms of this form of breach of contract that can be distinguished:

Mora Ex Re:
This occurs when a specific date is set on which the debtor must perform. If the debtor knowingly or unknowingly do not perform on the contractually agreed date, the debtor is in mora and therefore commits breach of contract.

Mora Ex Persona:
This occurs when the creditor submitted a notice to the debtor and the debtor still failed to perform. This is normally the case when there is no fixed date in the agreement and the debtor is required to perform in a ‘reasonable timeframe’. It is difficult to determine a reasonable timeframe. Therefore, the debtor is only in mora once the creditor has submitted a notice stipulating a specific timeframe, which is reasonable and the date must be calculated from the date of the notice. Should the debtor then fail to perform on the stipulated date as per the notice, the debtor is in mora and therefore commits breach of contract.

ii.Example:
The debtor undertake to buy a car from Suzuki for R50 000. This is a Contractual term and imposes an obligation on the debtor to pay an amount of R 2 500,00, to the creditor, on the 1st of each month, starting on 1 March 2012. Breach of Contract takes place when the creditor fails to make payment as contractually agreed.

iii.Legal Remedies with assistance of the court:
In the case of Mora Debitoris, there are the following legal remedies: - The creditor is in a position to demand that the contractual agreement be executed, in other words that the fulfilment of the contract. - If the circumstances allow it (as will be discussed later in the essay), the creditor may cancel the contract. - Should the creditor suffer any damage due to the non-fulfilment of the contract, the creditor may claim for damages suffered.

b.Default of the creditor (mora creditoris)
i.Explanation :
Mora creditoris is when a creditors actions is the cause of the delay in the debtors performance. Taking into account that breach of contract can only occur where the creditor’s co-operation is required for the debtor to be able to render performance.

ii.Example:
The creditor acquires the service of Pest Control for his house. The Creditor (Pest Control) can only fulfil their contractual obligation if the creditor allows Pest Control to access his house.

iii.Legal Remedies with assistance of the court:
In the case of Mora creditoris, the legal remedies are the same as in the case of Mora debitoris. - The debtor is in a position to demand that the contractual agreement be executed, in other words the fulfilment of the contract. - If the circumstances allow it, the debtor may cancel the contract. - Should the debtor suffer any damage due to the non-fulfilment of the contract, the debtor may claim for damages suffered because of the creditor’s refusal to accept performance.

c.Positive malperformance
i.Explanation :
There are two types of positive malperformance:
- Where the debtor supplies faulty or defective merx to the creditor and the merx therefore do not satisfy the creditors needs. - Where the debtor does something that is not permitable in terms of the agreement in the contract.

ii.Example:
Where a debtor is to build a house and on completion of...
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