Breach of contract explained and the 7 questions you need to ask

Contracts form the basis of legal agreements in all areas of life. They do not have to be in writing, although most are, particularly when dealing with business matters.

Every valid contract must have four key elements: offer, acceptance, consideration (ie. something of value such as payment) and intention.

What is breach of contract?

Once two or more parties have entered into a valid contract, they are legally bound to comply with its terms. These may stipulate payments to be made, goods or services to be provided or actions to be taken. If a party to a contract fails to do what they have agreed to do under the contract terms, then they are in breach of the contract.

This can include doing work that is defective, not paying for something within the agreed time limit or being late in carrying out a service.

When problems arise, it is vital that you have a well-drafted contract to rely on. In fact, a good contact often prevents disputes from arising in the first place, as the parties will be clear from the outset what is expected of them and what will happen if they breach the agreed terms.

There are a number of different types of breach, including minor, material, anticipatory and repudiatory.

For more information, see breach of contract.

Minor breach of contract

Where part of the contract is not adhered to, for example where a small change is made to part of the goods or services being provided, a minor or partial breach of contract occurs. An example would be where a builder uses substitute materials which be of similar quality but were not what was stipulated in the contract.

The contract can still be fulfilled, although it may be possible to seek damages if one party has acted to the detriment of the other. If a number of minor breaches have occurred, they may together be significant enough to constitute a material breach.

Material breach of contract

A material breach is the failure to fulfil an important part of the contract. The effect of a material breach will be serious enough that it has a substantial detrimental effect on the benefit that the innocent party should have received.

The parties to a contract may well disagree over whether a breach is material or not. Sometimes a contract will define certain actions as a material breach. If it is less clear, a court may have to decide what is fair.

Anticipatory breach of contract

This occurs when one party clearly does not intend to fulfil their contractual obligations. They may communicate their intention or it may be obvious from their actions, for example by failing to start work.

While the contract has not yet been breached, it can be anticipated that a breach will occur.

Repudiatory breach of contract

A repudiatory or fundamental breach is so serious that the injured party can choose to terminate the contract. An example might be if a builder stopped turning up so that no progress was being made on the agreed work. Damages may be payable, along with the ending of the contract.

To qualify as repudiatory, the breach must go to the root of the contract, be substantially inconsistent with the contract terms, deprive one party of the expected benefit or be unfair to the injured party to the extent that they could not be expected to continue with the contract.

If the term breached is a condition or a vital term of the contract, the innocent party may be entitled to end the contract, even if the consequences of the breach are not substantial. 

This is the only breach of contract that releases both parties from their obligations. Other types of breach still require the innocent party to adhere to the contract terms, even if they are successful in obtaining damages. For example, if a builder’s work required modifications by a new contractor, the injured party might receive damages, but would still be liable to pay for the work done.

If the work was so poor that it was considered to be a repudiatory breach of contract, then the ending of the contract would mean that neither party had any further obligations, unless ordered by the court.

What happens when a contract is breached?

If one party can show that a valid contract has been breached and that they have suffered loss as a result, they will be entitled to a remedy. If the matter cannot be settled by mediation, then the court can be asked to make a decision.

There are three different courses of action available to the court.

Firstly, damages may be awarded to put the claimant in the position they should have been in, had the contract terms been carried out correctly.

Secondly, where the breach is repudiatory, the contract can be terminated. Damages may also be payable.

Thirdly, the court may make an order for ‘specific performance’, requiring the party at fault to complete their contractual obligations.

Once you are aware of a breach of contract, it is advisable to seek legal advice. Involving a lawyer at an early stage can often help deal with the problem quickly and efficiently. As well as ensuring that the other party understands that the matter is being taken seriously, an experienced solicitor will also be able to suggest the best way forward. Finding a solution that is acceptable to everyone early on not only means that costs are kept as low as possible, but also enables business to carry on without disruption or delay.

For information on securing compensation, see A guide to remedies for breach of contract and Remedies for breach of contract: Can you claim compensation?

The 7 questions you need to ask when a contract is breached

A well-drafted contract will clearly explain the circumstances in which the contract can be voided. It can also include a right to end the contract if its terms are breached.

If the contract doesn’t include specific provision for ending it when the terms are breached, then caution is needed. Even if one party has failed to properly meet their contractual obligations, the other party needs to take make sure that they do not also breach the contract. The contract is not automatically terminated in the case of a breach, so until you are certain that it has ended, you must proceed in accordance with its terms.

The following 5 points will explain the dangers that might be encountered.

1.      Is the breach serious enough to justify terminating the contract?

It is not always obvious whether a breach is repudiatory, and therefore serious enough to end the contract. Failure to pay or provide a service may not be considered sufficient, although repeated failures may together amount to a repudiatory breach.

Before assuming that a contract has been ended, you should seek legal advice, to avoid breaching contract terms yourself.

If the breach only relates to a warranty, then you will still be required to comply with your part of the contract and you cannot end the contract on the basis of the breach, although you may be entitled to damages for any losses you have sustained.

If the party at fault has breached a condition or seriously breached a  term or refused to perform their obligations under the contract, this will generally justify terminating the contract. It is not always straightforward to assess whether a contract clause is a condition or warranty and you are advised to speak to an expert breach of contracts solicitor to ensure that you are within your rights to terminate the agreement.

Repudiation is a common law principle, meaning it can be used if the contract does not set out the specific conditions in which a contract is deemed terminated.

If the non-observance of the contract terms is serious enough to constitute a repudiatory breach, then the innocent party will need to decide what to do. They can either affirm the contract, meaning they will continue with it, or accept the repudiation.

If you decide to accept the repudiation it is essential to respond promptly to the breach, making it clear that the contract is terminated. You can then take steps to secure damages. If the contract is inadvertently affirmed, for example, by continuing to deal with the other party as if the contract were still in force, then you will lose your right to repudiate.

In some cases, you may not be able to decide immediately whether to affirm the contract or accept the repudiation. In this case, you may be able to delay providing a decision, but it is important to ensure that the other side understands that you have not made the choice to affirm and that you are reserving your right to do so.

2.      Should you provide the other party with an opportunity to remedy the breach?

The contract may specify that the party in breach is to be given the chance to remedy the situation. If there is a provision in the contract for a period of time in which to deal with a breach, you need to observe this and keep to any deadlines.

Even if the right to attempt to remedy a breach is not included in the contract, the reasonable course of action would be to contact the other party and ask for their proposals or suggest mediation. If you intend to pursue termination of the contract, you should serve notice of this.

Note that failing to give the other party the stipulated notice or chance to remedy the situation may mean that the termination is unlawful.

3.      Does the contract contain a ‘no waiver’ clause?

Some contracts contain a ‘no waiver’ clause, intended to prevent accidental waiver of a party’s rights. The clause will usually specify that contractual rights can only be waived in writing.

If the contract does not contain a ‘no waiver’ clause, then care must be taken not to accidentally waive rights, for example by allowing a delay in exercising rights or seeking a remedy.

If the contract does contain a ‘no waiver’ clause, there is still a risk that the innocent party could inadvertently waive their right to end the contract. 

In Tele2 International Car Company SA and others v Post Office Ltd [2009], Tele2 had breached its contract with the Post Office. The contract contained a ‘no waiver’ clause.

The Post Office continued to perform its obligations under the contract for a year after the breach before it took the steps of addressing the breach and giving notice of termination of the contract.

Initially, the court said that because of the ‘no waiver’ clause, the delay did not mean that the Post Office had lost its right to end the contract.

On appeal, the Court of Appeal overturned this decision. It found that the delay in acting and the fact that the Post Office continued as if the contract was still in effect was a waiver of its rights by way of election. The Post Office had therefore also chosen to abandon its right to end the contract.

This demonstrates the critical importance of addressing contract breaches promptly and effectively. Continuing to perform actions under the contract can potentially damage an innocent party’s ability to redress the matter.

4.      Should the injured party terminate the contract and do they have the right to do so?

Where there is a repudiatory breach of contract, a decision needs to be taken as to whether or not it is preferable to terminate the contract. You have the option to continue with the contract, reserving the right to claim damages, or you can try and renegotiate the terms of the contract.

Each case will need to be considered on its facts, taking into account what you might be able to achieve under the agreement in the future and whether there are better options available.

If you do not terminate the contract, it could be construed that you have accepted the repudiatory breach and you may lose the opportunity to terminate. It may even be held that a new contract has been created, with terms that you may find unfavourable.

If you decide to terminate the contract, be aware that you cannot subsequently change your mind.

You need to try and take the decision promptly. Delays could mean that there is a risk that you affirm the agreement.

5.      Has the contract been terminated correctly?

If the contract contains instructions for terminating a contract, these must be strictly adhered to. They are likely to include details regarding service of notice to terminate.  There may also be a requirement for the party at fault to be given the opportunity to rectify the situation. In this case, as much information as possible should be given, including the action steps required.

The party in receipt of the notice to terminate will want to check the contract to see if they have any grounds to reject the notice. This would allow them to request that the contract be carried out, or if not, they may themselves be able to claim repudiatory breach and apply for damages.

If the contract does not include any information about termination, then a court would usually require ‘reasonable’ notice to be given. This would be decided by looking at details such as the length of the contract and the parties’ relationship.

It is always advisable to take expert advice when terminating a contract. An experienced contract lawyer will be able to draft the notice in terms that retain your rights as far as possible, and also advise on what will be considered a ‘reasonable’ notice period.  If mistakes are made, they can be costly and far-reaching. Here at Lincoln & Rowe we are always happy to discuss how we can help you end a contract that has become problematic, while safeguarding your position.

You may have the option to end a contract under a right of termination contained in the contract or alternatively by exercising a common law right if there has been a repudiatory breach. It may be preferable to exercise the common law right as using the contractual option may mean that you are not able to claim damages for future loss of bargain. This is a loss caused by the inability to carry out other business because of breach of contract. For example, losses because the innocent party was unable to sell goods on at a profit because the failure of the contract meant that they were not able to make the goods. 

For more information, see The four ways to legally terminate a contract.

6. Is there an opportunity to mitigate any losses?

The doctrine of mitigation means that the innocent party is not entitled to recover damages in respect of any loss that could reasonably have been avoided. 

It is essential to consider mitigation as soon as a breach occurs, as it could be expensive if you fail to take reasonable steps to avoid losses and are subsequently precluded from recovering these.

You need to look at what you might be able to do to reduce losses. An example is the case of Thai Airways International plc v KI Holdings Co Ltd [2015], in which KI Holdings failed to provide seats to go in aircraft as agreed.

Thai Airways leased replacement aircraft as it was unable to use those it owned that had no seating. It took a three-year lease, but the court found that the losses had not been properly mitigated, as new seats could have been ordered, manufactured and installed within two years. Its recovery under this head of damages was limited to two years.

Other factors also reduced the amount of damages awarded, including the fact that the replacement seats were lighter, meaning a fuel saving that could be offset against the claim and the reduction in price of new aircraft obtained after the original order was delayed because of the seating issue.

7. Can the breach of contract be proved and if so, is ending the agreement the best option?

If you believe that you have the right to end a contract, you need to act promptly in deciding whether to end the agreement or not.

If you intend to make a claim for damages for breach of contract, you need to be able to prove that:

• There was a valid and binding contract in place
• The other party breached the contract
• You suffered a loss as a result of the breach

You may also want to consider your position if you do end the contract. In some cases, it may be difficult to find another party to provide the goods or services that you need. If it is, you might want to consider whether there is any way to proceed, for example, by renegotiating or ending the contract but working to put a new one in place. 

Summary

Dealing with a breach of contract can be a complicated process, as parties dispute the severity of a breach and whether it constitutes a repudiatory breach. There is a risk in proceeding on the assumption that a breach is repudiatory; if a court finds to the contrary, then the party initially at fault may try to make a claim themselves, alleging a breach.

A carefully drafted contract is the best starting place for an open and clear business relationship. Once problems arise, communication and mediation are always recommended to try and find an acceptable way forward.

Contract law is a complicated area and far-reaching mistakes can easily and inadvertently be made. It often saves time, effort and money in the long run to seek expert legal advice on the best way to proceed.

Get in touch with us

At Lincoln & Rowe we understand the importance of helping our clients keep their businesses running smoothly. As well as in-depth commercial expertise we provide an excellent service to our clients and practical advice and guidance.

We have wide-ranging experience in litigation and corporate law, and were named as winner of the Global 100 for Best Firm for Commercial Disputes of the Year 2024 and Gamechangers Global Awards for Boutique Litigation Law Firm of the Year 2023.

If you would like to talk to one of our expert legal team about any queries you may have, contact the author, Dipesh Dosani, or call the team today on 020 3968 6030 and we’ll be happy to help.

The above information is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights or legal advice about what action to take, please contact a legal advisor.