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Updated: Sep 24, 2020


Adjudication_Contract Termination
Don't terminate

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Can I terminate this contract?

Is the other party entitled to get out of this contract? These are questions commonly raised when the implementation of a commercial contract does not go to plan. This guide provides a summary of the legal options and remedies available for terminating contracts under English law. It also looks at another common question, namely whether an innocent party can escape a contract on the ground that something said during the pre-contractual negotiations turns out not to be true.


Terminology


First, it is worth clarifying the legal terminology used in this area.


Definitional difficulties and inconsistencies confound rights to "terminate" at common law. Strictly speaking, "termination" means that the contract is "discharged". In other words, the future, unaccrued obligations owed by the parties fall away. The contract does not cease to exist. Instead, upon the innocent party electing to treat his liabilities to perform as at an end, the primary obligations of the party in breach to perform the contract are replaced by secondary obligations to pay damages for the loss arising from the breach. References to termination in this guide are to termination in this strict sense.


"Rescission", on the other hand, refers to the retrospective avoidance of a voidable contract. Here the contractual rights and obligations remain in place until the innocent party opts to rescind the contract, at which point the rescission operates to render the contract a nullity.


Finally, in the following section, we use the term "repudiatory breach" in its broadest sense, to encompass all common law termination grounds, and not just one of the grounds – renunciation – to which some authors confine the expression.



In what circumstances can a contract be terminated?


Repudiatory breach of contract


Each of the following constitutes a repudiatory breach of contract justifying termination at common law:


1. a breach of condition (as opposed to warranty);


2. a sufficiently serious breach of an intermediate/innominate term; and


3. A refusal to perform, known as "renunciation".



Breach of condition

Not every breach of contract gives the innocent party the right to terminate. The innocent party will only be discharged from future performance of the contract if the term breached qualifies as a condition, i.e. a vital term. Provided the term is a condition, the innocent party will be entitled to terminate the contract, no matter how minor the consequences of the breach. A breach of warranty, on the other hand, does not absolve the affected party from future performance1, no matter how serious. The contract continues on foot, the parties remain obliged to perform their future obligations under the contract, and the only remedy for the breach is damages.2



Sufficiently serious breach of an intermediate/innominate term

A breach of an intermediate or innominate term, i.e. neither a condition nor a warranty, only justifies termination if the breach is sufficiently serious. It must "go to the root of the contract", "frustrate the commercial purpose" of the contract or "deprive the party not in default of substantially the whole benefit"3 of the contract. In every case, the Court will look at the nature and consequences of the breach to decide whether termination is justified.



Classification of terms


Deciding whether a term of a contract is a condition, warranty or intermediate term is not always straightforward. In some cases, statute may dictate or influence the classification. For example, certain provisions in the Sale of Goods Act 1979 specify whether certain terms should be regarded as conditions or warranties. The courts will also pay regard to the express terms of a contract: if the parties expressly identify a term as a condition or warranty, the courts will generally treat it as such. However, there are exceptions such as where statute provides otherwise or where, in the circumstances, the Court considers that the parties cannot have intended a breach of that term to result in automatic termination. In those cases, the courts usually construe the term as being intermediate and look to the surrounding circumstances to ascertain whether the breach is sufficiently serious to justify termination.4 As such, labels on their own may not guarantee that a term will be interpreted as being a condition or a warranty. If the parties intend any breach of a particular term to give rise to automatic termination, the contract should make that clear.



Repudiation and contractual time stipulations

Where time is of the essence in a contract, even a short delay can trigger a common law right to terminate for breach as the term is considered a condition of the contract.5 However, as a matter of English law, where a contract stipulates deadlines, time will not be treated as being "of the essence" unless one of the exceptions applies.6 Consequently, where a party defaults by failing to perform within a specified time, their default will not amount to a repudiation and the innocent party will not have a common law right to terminate.


There are three exceptions to the general position that time is not of the essence:


Express agreement where the parties have expressly agreed that time is of the essence. If the contract stipulates that the time fixed for performance must be strictly complied with or that time is of the essence, the time stipulation will be treated as a condition of the contract and any delay will be a repudiatory breach.7


Implication on the facts where the circumstances of the contract or the nature of the subject matter indicate that the stipulated time or date must be exactly complied with, and the parties intended even a slight default to lead to loss of the relevant right or a right to terminate.


Notice where a party (who is ready, willing and able to complete) has given notice to the party in default requiring completion in a reasonable time.8 The effect of the notice is not to make time of the essence but to entitle the party giving the notice to terminate if failure to comply with the terms of the notice goes to the root of the contract to deprive them of a substantial part of the benefit of the contract.9



Refusal to perform/renunciation


Where a party declares an unequivocal intention to abandon further performance of the contract, or an intention not to perform some essential aspect of the contract, the innocent party is entitled to treat himself as discharged from further performance. Not every declaration of non-performance is a repudiatory breach. Sometimes a party will refuse to perform some, rather than all, of its contractual obligations or indicates that it will only perform them in a particular manner. In determining whether the breach is repudiatory, the Court will consider whether the non-performance amounts to a breach of condition or deprives the innocent party of substantially the whole benefit of the contract (see below).

A declaration of non-performance can be either an express refusal to perform or it can be inferred from the party's conduct if he behaves in a manner which would lead a reasonable person to conclude that he has no intention of fulfilling his obligations.10 If a party threatens non-performance before the time fixed for performance, this is known as an anticipatory breach.

Election: accepting the repudiatory breach or affirming the contract

Termination is not automatic. The innocent party may elect either to accept the breach and treat the contract as discharged or to affirm the contract and press the party in breach to perform.11 A party cannot affirm a contract following a repudiatory breach unless he has a full understanding of the facts leading to that breach12 and is aware of the right that he has to choose between acceptance and affirmation.13


The law does not lay down a particular period in which the election must be made.14 However, the innocent party must not do anything to jeopardise the right of election, either by waiting too long to decide how to respond,15 or by losing the right of election by inconsistent conduct. In practice this area can be fraught with difficulty because, while the innocent party is deciding how to treat the contract, he risks taking a step which constitutes an election to affirm it and, once an affirmation has been made, it cannot be revoked.16



Contractual termination


Commercial contracts often contain express termination clauses which provide for termination in certain specified circumstances, including for breaches other than repudiatory breaches. Some contractual termination clauses work by expressly classifying terms as conditions or warranties to make clear those circumstances in which the contract can be brought to an end and those which only give a right to claim damages. Some contractual provisions attempt to give rights to terminate for "material" or "substantial" breaches, for "any" breaches (however minor) or for repeated breaches.


Contractual termination rights will operate in addition to common law rights to terminate unless the latter is expressly (or impliedly) excluded17 by providing that the contract may only be terminated by exercising the contractual rights. Termination clauses require careful drafting and regard must be had to how the courts approach such provisions.


However, electing to terminate a contract based on a contractual termination right can preclude a common law claim for future loss of bargain as a result of a repudiatory breach (see below). Serious consideration needs to be given whenever a party is exercising contractual termination rights.


Damages for breach of contract


Deciding whether you have a right to terminate a contract and how to bring about that termination can be difficult. The compensation that can be claimed by way of damages can vary depending on which termination rights are exercised.

Damages for repudiatory breach are assessed according to normal principles,meaning that the innocent party is, as far as possible, put in the position in which it would have been if the contract had been properly performed, subject to the usual rules on causation, foreseeability and mitigation.

At common law, in addition to claiming recompense for losses resulting from the breach or breaches prior to the termination, an innocent party accepting a repudiatory breach of contract is entitled to claim "loss of bargain" damages (an amount to compensate for the lost opportunity to receive future performance of the contract).18


Contractual provisions may entitle a party to terminate where the breach in question does not amount to a repudiatory breach at common law. However, in this situation, it may not be possible to recover "loss of bargain" damages. Where the breach is not also repudiatory at common law, damages will usually be limited to loss suffered up to the date of termination unless the contract expressly provides otherwise. The difference can be considerable.

Where a party has both common law and contractual rights to terminate, but elects to terminate using a contractual termination entitlement rather than alleging repudiatory breach, it will be prevented from claiming loss of future bargain damages.19


An innocent party who instead decides to affirm the contract, rather than terminating, can claim damages in the usual way for loss suffered as a result of the breach or breaches.





Some practical issues when facing the decision to terminate


Should you terminate?


Before terminating a contract, consider whether the relationship is to end or whether it should continue with the contract but reserve the right to claim damages for any breach. Renegotiate the contract. If you decide to terminate, you should also check whether there is a prescribed dispute resolution procedure to reach a solution and whether the party in default has a contractual right to remedy the breach within a certain period.


Although an election to terminate need not be made immediately, you should be careful not to take too long or engage in conduct which could be seen as an affirmation of the contract. Take care to qualify any correspondence with appropriate reservations of rights when engaging in further business related conduct. Once communicated, an election to terminate cannot be withdrawn without the other party's consent. If a contract is terminated but the parties proceed for a time on "business as usual" terms, a new or supplementary contract might be created, potentially on the same terms as previously, which could be a commercially undesirable outcome.


Choosing between a contractual and common law right to terminate

The decision to terminate, and how to communicate that decision, can become more complicated where a party has both contractual and common law rights to terminate. The consequences of this choice can be significant. If a contracting party wants to be in a position to claim loss of bargain damages, the notice of termination should make it clear that it is terminating under its common law right to terminate for repudiatory breach. Terminating based on a contractual right alone may preclude a claim for future loss of bargain damages.20


However, terminating solely based on a common law right carries the risk that the party terminating will itself be in repudiatory breach if the breach relied on for the common law termination is not found to be repudiatory.

It is unclear whether a party can terminate based on a repudiatory breach while reserving their contractual right to terminate in the event their claim is misconceived. However, it has been suggested that there should be no reason why a party could not serve a notice accepting a repudiatory breach, but assert in the alternative their contractual right to terminate.21


Where there is a clause in the contract covering termination, it is important to follow any specified notification requirements and time limits. You may also be obliged to give the party in default an opportunity to remedy the breach within a certain time.


Terminating on the grounds of delay


If a party wants to terminate on the grounds of a delay, consideration needs to be given as to whether time is of the essence. If there are no express contractual terms and no facts allowing an implication of time being of the essence, then the party will have to serve a notice requiring completion in a reasonable time. This will then cause any further delay to be classed as a sufficiently serious breach of a contractual term, and will justify termination at common law.


Where time is of the essence, even a short delay will be a repudiatory breach and will engage a common law right to terminate.


What steps should be taken to mitigate loss and when?


A party cannot recover damages for any part of a loss which could reasonably have been avoided, so it is essential to consider ways to prevent or reduce loss. The duty to mitigate requires a party to act reasonably, which will depend on the individual circumstances of each situation. However, the claimant need only take steps which are "in the ordinary course of business"22 and is not required to engage in commercially risky conduct. Expenses, costs or further loss incurred in taking steps to mitigate the loss can be recovered. As for timing, once the innocent party becomes aware of the breach, or ought to have known of it, it has a reasonable time within which to take steps to mitigate.



The effect of pre-contract misrepresentations


An actionable misrepresentation is a false statement (made fraudulently, negligently or innocently) that causes the representee to alter its position in reliance on the statement. How a representee may alter its position is by entering into a contract. The legal options available and the consequent effect on the contract depend on whether the statement has become a term of the contract, the type of misrepresentation, the cause of action relied on, and the remedy claimed.


Representations that have become contractual terms


If a statement made during pre-contractual negotiations has become a term of the contract, then standard principles apply to determine whether the contract can be terminated. The Court will ask whether the representor promised in the contract that the statement in question was correct. If so, has that promise been broken to constitute a repudiatory breach at common law or trigger contractual termination provisions as outlined above? If that is the case, the innocent party may terminate the agreement for breach.


Representations that are not contractual terms

Where the false statement has induced the representee to enter into the contract, but the misrepresentation has not become embodied as a term of the contract, the appropriate remedy at common law is rescission of the contract.23 If the representee chooses to exercise its right of rescission the contract is then treated retrospectively as a nullity. Meaning that performance is reversed, all rights and obligations fall away, the parties' pre-contract position is restored, and the agreement is treated as if it had never existed.


Electing to rescind and the bars to rescission


Rescission is by election. The representee must give a clear indication that he intends to be bound by the contract no longer. The representee does not have to go to Court to obtain rescission, although if there is a dispute, he may have to seek an order of the Court that the election was valid. The rescission will be valid provided the representee can show that either:


the false statement was a representation of fact (as opposed to opinion, intention or law); or that the statement was made fraudulently; and, in either case, that it operated to induce him to enter into the contract thus establishing a prima facie right to rescind. However, rescission may be barred on several different grounds: the representee has by words or by conduct affirmed24 the contract; the representee has delayed unduly;25 restitution of the parties to their pre-contract positions is impossible; third party rights would be prejudiced, or the Court exercises its statutory discretion under the Misrepresentation Act 1967 to deny rescission where the misrepresentation is not fraudulent.


As to this last point, if the representee has elected to rescind the contract based on a fraudulent misrepresentation,26 the Court has no power to declare that the contract is still in existence.27 For innocent and negligent misrepresentations, however, there is no absolute right to rescind. The remedy under the Misrepresentation Act is either rescission or damages in lieu (see below). The Court decides which of these remedies is the most appropriate and equitable, exercising a broad discretion which includes considering the likely effect on both parties of permitting the contract to continue.



Damages for misrepresentation


The topic of damages for misrepresentation is more complicated than damages for breach of contract because of the different ways in which the claim can be framed and associated tactical considerations. Options include: provided the representation has become a contract term, terminating for breach and claiming contractual damages; rescinding the contract for misrepresentation and claiming damages either: in the tort of deceit if the representation was fraudulent; or

if not fraudulent, under section 2(1) of the Misrepresentation Act 1967, under which damages are assessed using the tort measure.

The starting point for the tortious measure of damages is that the claimant should be put back in the position in which he would have been had the tort not been committed, that is, here, had the misrepresentation not been made.

Damages for deceit can be exceptionally generous because they are awarded to compensate the representee for all the losses he has suffered as a result of his reliance on the fraudulent misrepresentation.28 The representee has to mitigate his loss once he discovers the fraud. Subject to this and the requirement to demonstrate a causal link, he may recover all actual loss suffered as a result of his having entered into the transaction. Furthermore, the usual requirement that the losses claimed must have been reasonably foreseeable does not apply.29 Therefore the innocent party can recover all losses flowing from the fraud, even if they are unforeseeable.


Section 2(1) of the Misrepresentation Act 1967 provides for recovery where a person has entered into a contract in reliance on a misrepresentation. It covers negligent and even wholly innocent misrepresentations, and there is no need to prove fraud. However, as noted above, where the misrepresentation is not fraudulent, the Court can decide to declare the contract as subsisting. Under section 2(2) it can award damages but, consistent with the fact that the contract subsists, these will be on the contractual measure.


The effect of contractual provisions


Parties often want to avoid the uncertainty of claims being made based on matters that are outside the terms of the contract. Therefore contracts often contain provisions that purport to exclude or limit liability for pre-contractual statements or to exclude or limit the available remedies. For example, it may provide that damages are the only remedy and that the contract cannot be rescinded. Whether such clauses are valid depends on their construction and whether any statutory restrictions apply (see footnote 17 above).


Entire agreement and non-reliance clauses


To this end "entire agreement" clauses are commonly used, e.g. "This agreement together with any other documents referred to in this agreement constitutes the entire and only agreement between the parties..." as well as "non-reliance" clauses acknowledging that the parties have not relied on representations made outside of the contract. The aim is to restrict claims to matters that have become embodied in the contract. However, for these clauses to be valid, they must be drafted carefully.


Non-disclosure


There is no general requirement under English law for parties negotiating a contract to disclose information to one another. In some circumstances, a party's silence will amount to a misrepresentation, for example, where it gives only half the truth, which has the effect of misleading the other party. If this is the case, the contract can be rescinded for misrepresentation as above. Liability for pure non-disclosure is more difficult to establish as the claimant must prove that there was an affirmative duty on the other party to provide the relevant information. This duty can derive from the particular kind of contract (for example, insurance contracts) or the relationship between the parties, e.g. trustee and beneficiary.



Other matters that may invalidate a contract Mistake

Not all mistakes affect the validity of the contract. The doctrine of offer and acceptance relies upon a meeting of minds between the parties as to what is being offered and what is being accepted. If there has been a mistake about something fundamental like the identity of the party with whom the contract is made or its subject matter, there is no actual agreement. In this situation, the Court will set it aside and restore the parties to their pre-contract position. In other situations of mistake, the contract is not necessarily void. The Court's view will depend on whether it is still possible to perform the contract, notwithstanding the mistake.30


Frustration/subsequent impossibility

A frustrating event is an extreme supervening event occurring after the formation of the contract which makes further performance impossible, or so radically different to that envisaged that it would be unjust for the contract to continue. For example, the outbreak of war31 or seizure of property by a foreign government.32 At common law the effect is to terminate the contract, releasing the parties from all further performance. This consequence is automatic33, but the scope for frustration can be cut down by including in the contract express provisions (force majeure) setting out what should happen to the contract if something unforeseen occurs.



Illegality/public policy


Contracts involving the commission of crimes, torts or unreasonable restraint of trade are void and unenforceable. Contracts involving transactions prohibited by law are generally void and cannot be enforced by either party.


Duress/undue influence

Contracts induced by actual or threatened violence (physical or economic) are voidable by the injured party. For example, economic duress, a threat to breach a contract or coercion which invalidates consent.34 Undue influence arises, and can be presumed, in situations where there is a fiduciary relationship.

Terminology

First, it is worth clarifying the legal terminology used in this area.

Definitional difficulties and inconsistencies confound rights to "terminate" at common law. Strictly speaking, "termination" means that the contract is "discharged". In other words, the future, unaccrued obligations owed by the parties fall away. The contract does not cease to exist. Instead, upon the innocent party electing to treat his liabilities to perform as at an end, the primary obligations of the party in breach to perform the contract are replaced by secondary obligations to pay damages for the loss arising from the breach. References to termination in this guide are to termination in this strict sense.

"Rescission", on the other hand, refers to the retrospective avoidance of a voidable contract. Here the contractual rights and obligations remain in place until the innocent party opts to rescind the contract, at which point the rescission operates to render the contract a nullity.


Finally, in the following section, we use the term "repudiatory breach" in its broadest sense, to encompass all common law termination grounds, and not just one of the grounds – renunciation – to which some authors confine the expression.


In what circumstances can a contract be terminated?


Repudiatory breach of contract


Each of the following constitutes a repudiatory breach of contract justifying termination at common law:

· a breach of condition (as opposed to warranty);

· a sufficiently serious breach of an intermediate/innominate term; and

· a refusal to perform, known as "renunciation".

Breach of condition

Not every breach of contract gives the innocent party the right to terminate. The innocent party will only be discharged from future performance of the contract if the term breached qualifies as a condition, i.e. a vital term. Provided the term is a condition, the innocent party will be entitled to terminate the contract, no matter how minor the consequences of the breach. A breach of warranty, on the other hand, does not absolve the affected party from future performance1, no matter how serious. The contract continues on foot, the parties remain obliged to perform their future obligations under the contract, and the only remedy for the breach is damages.2

Sufficiently serious breach of an intermediate/innominate term


A breach of an intermediate or innominate term, i.e. neither a condition nor a warranty, only justifies termination if the breach is sufficiently serious. It must "go to the root of the contract", "frustrate the commercial purpose" of the contract or "deprive the party not in default of substantially the whole benefit"3 of the contract. In every case, the court will look at the nature and consequences of the breach to decide whether termination is justified.

Classification of terms

Deciding whether a term of a contract is a condition, warranty or intermediate term is not always straightforward. In some cases, statute may dictate or influence the classification. For example, certain provisions in the Sale of Goods Act 1979 specify whether certain terms should be regarded as conditions or warranties. The courts will also pay regard to the express terms of a contract: if the parties expressly identify a term as a condition or warranty, the courts will generally treat it as such. However, there are exceptions such as where statute provides otherwise or where, in the circumstances, the court considers that the parties cannot have intended a breach of that term to result in automatic termination. In those cases, the courts usually construe the term as being intermediate and look to the surrounding circumstances to ascertain whether the breach is sufficiently serious to justify termination.4 As such, labels on their own may not guarantee that a term will be interpreted as being a condition or a warranty. If the parties intend any breach of a particular term to give rise to automatic termination, the contract should make that clear.

Repudiation and contractual time stipulations


Where time is of the essence in a contract, even a short delay can trigger a common law right to terminate for breach as the term is considered a condition of the contract.5 However, as a matter of English law, where a contract stipulates deadlines, time will not be treated as being "of the essence" unless one of the exceptions applies.6 Consequently, where a party defaults by failing to perform within a specified time, their default will not amount to a repudiation and the innocent party will not have a common law right to terminate.

There are three exceptions to the general position that time is not of the essence:

Express agreement where the parties have expressly agreed that time is of the essence. If the contract stipulates that the time fixed for performance must be strictly complied with or that time is of the essence, the time stipulation will be treated as a condition of the contract and any delay will be a repudiatory breach.7

Implication on the facts where the circumstances of the contract or the nature of the subject matter indicate that the stipulated time or date must be exactly complied with, and the parties intended even a slight default to lead to loss of the relevant right or a right to terminate.


Notice where a party (who is ready, willing and able to complete) has given notice to the party in default requiring completion in a reasonable time.8 The effect of the notice is not to make time of the essence but to entitle the party giving notice to terminate if failure to comply with the terms of the notice goes to the root of the contract so as to deprive them of a substantial part of the benefit of the contract.9

Refusal to perform/renunciation

Where a party declares an unequivocal intention to abandon further performance of the contract, or an intention not to perform some essential aspect of the contract, the innocent party is entitled to treat himself as discharged from further performance. Not every declaration of non-performance is a repudiatory breach. Sometimes a party will refuse to perform some, rather than all, of its contractual obligations or indicates that he will only perform them in a particular manner. In determining whether the breach is repudiatory the court will consider whether the non-performance amounts to a breach of condition or deprives the innocent party of substantially the whole benefit of the contract (see below).

A declaration of non-performance can be either an express refusal to perform or it can be inferred from the party's conduct if he behaves in a manner which would lead a reasonable person to conclude that he has no intention of fulfilling his obligations.10 If a party threatens non-performance prior to the time fixed for performance, this is known as anticipatory breach.

Election: accepting the repudiatory breach or affirming the contract

Termination is not automatic. The innocent party may elect either to accept the breach and treat the contract as discharged or to affirm the contract and press the party in breach to perform.11 A party cannot affirm a contract following a repudiatory breach unless he has a full understanding of the facts leading to that breach12 and is aware of the right that he has to choose between acceptance and affirmation.13

The law does not lay down a particular period in which the election must be made.14 However, it is crucial for the innocent party not to do anything to jeopardise the right of election, either by waiting too long to decide how to respond,15 or by losing the right of election by inconsistent conduct. In practice this area can be fraught with difficulty because, while the innocent party is deciding how to treat the contract, he risks taking a step which constitutes an election to affirm it and, once an affirmation has been made, it cannot be revoked.16

Contractual termination

Commercial contracts often contain express termination clauses which provide for termination in certain specified circumstances, including for breaches other than repudiatory breaches.


Some contractual termination clauses work by expressly classifying terms as conditions or warranties so as to make clear those circumstances in which the contract can be brought to an end and those which only give a right to claim damages. Some contractual provisions attempt to give rights to terminate for "material" or "substantial" breaches, for "any" breaches (however minor) or for repeated breaches. Contractual termination rights will operate in addition to

common law rights to terminate unless the latter are expressly (or impliedly) excluded17 by providing that the contract may only be terminated by exercising the contractual rights. Termination clauses require careful drafting and regard must be had to the way in which the courts approach such provisions.

However, electing to terminate a contract on the basis of a contractual termination right can preclude a common law claim for future loss of bargain as a result of a repudiatory breach (see below). Serious consideration needs to be given whenever a party is exercising contractual termination rights.

Damages for breach of contract

Deciding whether you have a right to terminate a contract and how to bring about that termination can be difficult. The compensation that can be claimed by way of damages can vary depending on which termination rights are exercised.

Damages for repudiatory breach are assessed according to normal principles. This means that the innocent party is, as far as possible, put in the position in which it would have been if the contract had been properly performed, subject to the usual rules on causation, forseeability and mitigation. At common law, in addition to claiming recompense for losses resulting from the breach or breaches prior to the termination, an innocent party accepting a repudiatory breach of contract is entitled to claim "loss of bargain" damages (an amount to compensate for the lost opportunity to receive future performance of the contract).18

Contractual provisions may entitle a party to terminate where the breach in question does not amount to a repudiatory breach at common law. However, in this situation it may not be possible to recover "loss of bargain" damages. Where the breach is not also repudiatory at common law, damages will usually be limited to loss suffered up to the date of termination unless the contract expressly provides otherwise. The difference can be considerable.

Where a party has both common law and contractual rights to terminate, but elects to terminate using a contractual termination entitlement rather than alleging repudiatory breach, it will be prevented from claiming loss of future bargain damages.19

An innocent party who instead decides to affirm the contract, rather than terminating, can claim damages in the normal way for loss suffered as a result of the breach or breaches.

Some practical issues when facing the decision to terminate

Should you terminate?

Before terminating a contract, consider whether you want the relationship to end or whether you should continue with the contract but reserve the right to claim damages for any breach. You may want to renegotiate the contract. If you decide to terminate, you should also check whether there is a prescribed dispute resolution procedure to reach a solution and whether the party in default has a contractual right to remedy the breach within a certain period.

Although an election to terminate need not be made immediately, you should be careful not to take too long or engage in conduct which could be seen as an affirmation of the contract. Take care to qualify any correspondence with appropriate reservations of rights when engaging in further business related conduct. Once communicated, an election to terminate cannot be withdrawn without the other party's consent. If a contract is terminated but the parties proceed for a time on "business as usual" terms, a new or supplementary contract might be created, potentially on the same terms as previously, which could be a commercially undesirable outcome.

Choosing between a contractual and common law right to terminate

The decision to terminate, and how you communicate that decision, can become more complicated where a party has both contractual and common law rights to terminate. The consequences of this choice can be significant. If a contracting party wants to be in a position to claim loss of bargain damages, the notice of termination should make it clear that it is terminating pursuant to its common law right to terminate for repudiatory breach. Terminating on the basis of a contractual right alone may preclude a claim for future loss of bargain damages.20

However, terminating solely on the basis of a common law right carries the risk that the party terminating will itself be in repudiatory breach if the breach relied on for the common law termination is not found to be repudiatory.

It is unclear whether a party can terminate on the basis of a repudiatory breach while reserving their contractual right to terminate in the event their claim is misconceived. However, it has been suggested that there should be no reason why a party could not serve a notice accepting a repudiatory breach, but assert in the alternative their contractual right to terminate.21

Where there is a clause in the contract covering termination, it is important to follow any specified notification requirements and time limits. You may also be obliged to give the party in default an opportunity to remedy the breach within a certain time.

Terminating on the grounds of delay

If a party wants to terminate on the grounds of a delay, consideration needs to be given as to whether time is of the essence. If there are no express contractual terms and no facts allowing an implication of time being of the essence, then the party will have to serve a notice requiring completion in a reasonable time. This will then cause any further delay to be classed as a sufficiently serious breach of a contractual term, and will justify termination at common law.

Where time is of the essence, even a short delay will be a repudiatory breach and will engage a common law right to terminate.

What steps should you take to mitigate loss and when?

A party cannot recover damages for any part of a loss which could reasonably have been avoided, so it is important to consider ways to prevent or reduce loss. The duty to mitigate requires a party to act reasonably, which will depend on the individual circumstances of each situation. However, the claimant need only take steps which are "in the ordinary course of business"22 and is not required to engage in commercially risky conduct. Expenses, costs or further loss incurred in taking steps to mitigate the loss can be recovered. As for timing, once the innocent party becomes aware of the breach, or ought to have known of it, it has a reasonable time within which to take steps to mitigate.

The effect of pre-contract misrepresentations

An actionable misrepresentation is a false statement (made fraudulently, negligently or innocently) that causes the representee to alter its position in reliance on the statement. One of the ways in which a representee may alter its position is by entering into a contract. The legal options available and the consequent effect on the contract depend on whether the statement has become a term of the contract, the type of misrepresentation, the cause of action relied on and the remedy claimed.

Representations that have become contractual terms

If a statement made during pre-contractual negotiations has become a term of the contract, then normal principles apply to determining whether the contract can be terminated. The court will ask whether the representor promised in the contract that the statement in question was true. If so, has that promise been broken so as to constitute a repudiatory breach at common law or trigger contractual termination provisions as outlined above? If that is the case, the innocent party may terminate the agreement for breach.

Representations that are not contractual terms

Where the false statement has induced the representee to enter into the contract but the misrepresentation has not become embodied as a term of the contract, the relevant remedy at common law is rescission of the contract.23 If the representee chooses to exercise its right of rescission the contract is then treated retrospectively as a nullity. This means that performance is reversed, all rights and obligations fall away, the parties' pre-contract position is restored and the agreement is treated as if it had never existed.

Electing to rescind and the bars to rescission

Rescission is by election. The representee must give a clear indication that he intends to be bound by the contract no longer. The representee does not have to go to court to obtain rescission, although if there is a dispute he may have to seek an order of the court that the election was valid. The rescission will be valid provided the representee can show that either:

the false statement was a representation of fact (as opposed to opinion, intention or law); or

that the statement was made fraudulently;

and, in either case, that it operated to induce him to enter into the contract. This establishes a prima facie right to rescind. However, rescission may be barred on a number of different grounds: the representee has by words or by conduct affirmed24 the contract; the representee has delayed unduly;25

restitution of the parties to their pre-contract positions is impossible; third party rights would be prejudiced; or the court exercises its statutory discretion under the Misrepresentation Act 1967 to deny rescission where the misrepresentation is not fraudulent.

As to this last point, if the representee has elected to rescind the contract on the basis of a misrepresentation that is fraudulent,26 the court has no power to declare that the contract is still in existence.27 For innocent and negligent misrepresentations, however, there is no absolute right to rescind. The remedy under the Misrepresentation Act is either rescission or damages in lieu (see below). The court decides which of these remedies is the most appropriate and equitable, exercising a very broad discretion which includes considering the likely effect on both parties of permitting the contract to continue.

Damages for misrepresentation

The topic of damages for misrepresentation is more complex than damages for breach of contract because of the different ways in which the claim can be framed and associated tactical considerations.


Options include: provided the representation has become a contract term, terminating for breach and claiming contractual damages; rescinding the contract for misrepresentation and claiming damages either: in the tort of deceit if the representation was fraudulent; or if not fraudulent, under section 2(1) of the Misrepresentation Act 1967, under which damages are assessed using the tort measure.

The starting point for the tortious measure of damages is that the claimant should be put back in the position in which he would have been had the tort not been committed, that is, here, had the misrepresentation not been made.

Damages for deceit can be especially generous because they are awarded to compensate the representee for all the losses he has suffered as a result of his reliance on the fraudulent misrepresentation.28 The representee has a duty to mitigate his loss once he discovers the fraud. Subject to this and the requirement to demonstrate a causal link, he may recover all actual loss suffered as a result of his having entered into the transaction. Furthermore, the normal requirement that the losses claimed must have been reasonably foreseeable does not apply.29 Therefore the innocent party can recover all losses flowing from the fraud, even if they are unforeseeable.

Section 2(1) of the Misrepresentation Act 1967 provides for recovery where a person has entered into a contract in reliance on a misrepresentation. It covers negligent and even wholly innocent misrepresentations and there is no need to prove fraud. However, as noted above, where the misrepresentation is not fraudulent the court can decide to declare the contract as subsisting. Under section 2(2) it can award damages but, consistent with the fact that the contract subsists, these will be on the contractual measure.

The effect of contractual provisions

Parties often want to avoid the uncertainty of claims being made based on matters that are outside the terms of the contract. Therefore contracts often contain provisions that purport to exclude or limit liability for pre-contractual statements or to exclude or limit the available remedies. For example, it may provide that damages are the only remedy and that the contract cannot be rescinded. Whether such clauses are effective depends on their construction and whether any statutory restrictions apply (see footnote 17 above).

Entire agreement and non-reliance clauses

To this end "entire agreement" clauses are commonly used, e.g. "This agreement together with any other documents referred to in this agreement constitutes the entire and only agreement between the parties..." as well as "non-reliance" clauses acknowledging that the parties have not relied on representations made outside of the contract. The aim is to restrict claims to matters that have become embodied in the contract. However, for these clauses to be effective, they must be drafted carefully.

Non-disclosure

There is no general requirement under English law for parties negotiating a contract to disclose information to one another. In some circumstances a party's silence will amount to a misrepresentation, for example, where it gives only half the truth which has the effect of misleading the other party. If this is the case the contract can be rescinded for misrepresentation as above. Liability for pure non-disclosure is more difficult to establish as the claimant must prove that there was a positive duty on the other party to provide the relevant information. This duty can derive from the particular kind of contract (for example, insurance contracts) or from the relationship between the parties, e.g. trustee and beneficiary.

Other matters that may invalidate a contract

Mistake

Not all mistakes affect the validity of the contract. The doctrine of offer and acceptance relies upon a meeting of minds between the parties as to what is being offered and what is being accepted. If there has been a mistake about something fundamental like the identity of the party with whom the contract is made or its subject matter, there is no true agreement. In this situation the court will set it aside and restore the parties to their pre-contract position. In other situations of mistake the contract is not necessarily void. The court's view will depend on whether it is still possible to perform the contract, notwithstanding the mistake.30

Frustration/subsequent impossibility

A frustrating event is an extreme supervening event occurring after the formation of the contract which makes further performance impossible, or so radically different to that envisaged, that it would be unjust for the contract to continue. For example, the outbreak of war31 or seizure of property by a foreign government.32 At common law the effect is to terminate the contract, releasing the parties from all further performance. This consequence is automatic33 but the scope for frustration can be cut down by including in the contract express provisions (force majeure) setting out what should happen to the contract if something unforeseen occurs.

Illegality/public policy

Contracts involving the commission of crimes, torts or unreasonable restraint of trade are void and unenforceable. Contracts involving transactions prohibited by law are generally void and cannot be enforced by either party.

Duress/undue influence

Contracts induced by actual or threatened violence (physical or economic) are voidable by the injured party. For example, economic duress, a threat to breach a contract or coercion which invalidates consent.34 Undue influence arises, and can be presumed, in situations where there is a fiduciary relationship.

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