The issue of the contract

This then leads to the issue of the contract between Rebecca and the Committee being breached. Just to refresh your memory, breach of contract is whereby a party excuses himself or refuses to carry out his obligations from a contract without a valid lawful reason. By not paying the rent for October and deciding to pull out of the contract prematurely amounts to breach of contract by Rebecca. A contract is made up of terms; there are mainly 3 types of terms which are namely conditions, warranties and innominate terms.

A condition is a term which is of the essence to the contract therefore when breached the innocent party is given the right to discharge the contract and may also claim damages. Warranties are terms which are not fundamental to the contract therefore if breached the innocent party can only claim for damages. Lastly innominate terms are those which are neither conditions nor warranties and breach may result in the contract being discharged. In this case it seems that the contract was breached by Rebecca refusing to pay the rent for October and choosing to withdraw from the contract without a lawful excuse.

However, the breach of contract by Rebecca does not automatically mean that the contract is ended as outlined in the case of Decro-Wall International v. Practitioners in Marketing Ltd11 in which the courts held that the breach of contract by the defendants did not justify termination of the whole contract. The Committee in this instance is the innocent party therefore it has the right of election; they can chose whether they want the whole contract with Rebecca cancelling or affirming it.

The lease clearly outlines the terms of the contract so as already mentioned Rebecca has broken a condition of the contract by not paying the October rent. The Committee can therefore terminate the contract and claim for damages from Rebecca, the damages aim to put the Committee in the position they would have been had the contract not been breached.

The damages could be the amount of rent that was remaining from the lease. The decision to terminate the contract should be communicated to Rebecca as set out by the case of Vitol SA v.Norelf Ltd12. The Committee can also affirm the contract and accept damages for the losses incurred as a result of the breach. In this case both parties are still bound by the terms of the contract and still have to carry out their obligations under the contract. The type of breach specific to Rebecca and the Committee is anticipatory breach; this is whereby one party informs the other that he will not perform their contractual obligations. The innocent party i. e. the Committee is entitled to terminate performance of the contract.

Rebecca wrote to the Committee informing them that she wishes to withdraw from the contract. It is clear that the Committee is not willing for the contract to be terminated as there is a breach of an implied term of the contract. Under the doctrine of anticipatory breach neither party without reasonable cause is allowed to withdraw from the contract. The Committee is not obliged to exercise their right to terminate the contract, instead they can choose to affirm the contract and force Rebecca to fulfil her contractual obligation as stipulated in the contract.

The Committee may still continue their performance of their obligations despite knowing that Rebecca does not want their performance as illustrated by the case of White and Carter (Councils) Ltd v. McGregor13. From all the above it can be summarised that there is difficulty in proving that the contract was frustrated and on the other hand it is clear that Rebecca breached the contract. I really hope that my advice would be of help to you and Rebecca.