Fundamental, and ‘anticipatory’ breach and the impact of ‘rescission’

Aitken, Lee (2012) Fundamental, and ‘anticipatory’ breach and the impact of ‘rescission’. Australian Bar Review, 36 1: 18-30.

Attached Files (Some files may be inaccessible until you login with your UQ eSpace credentials)
Name Description MIMEType Size Downloads
Author Aitken, Lee
Title Fundamental, and ‘anticipatory’ breach and the impact of ‘rescission’
Journal name Australian Bar Review
ISSN 0814-8589
Publication date 2012
Sub-type Article (original research)
Open Access Status
Volume 36
Issue 1
Start page 18
End page 30
Total pages 13
Place of publication Chatswood, NSW, Australia
Publisher LexisNexis Butterworths
Collection year 2013
Language eng
Subject C1
180105 Commercial and Contract Law
Abstract A party might repudiate its obligations under a contract by breaching it in various ways. The distinction between a fundamental breach, and a breach of an innominate term which yet also justifies ’rescission’ for breach of the contract, is difficult to draw in practice, as recent cases reveal. Superadded to the complexities is the possibility of an anticipatory breach of a term which the ’innocent’ party may accept, or not as it wishes and which justifies it in a ’rescission’ of the contract. In the latter case, it is a question whether or not that party still needs to manifest an intention, and ability, to perform its own obligations, and on this question the High Court authority is not clear. Recent authority discussed in the article demonstrates that these are difficult topics upon which minds may properly differ, and that the theoretical underpinning of the law could stand further elucidation by the High Court.
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status Non-UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: Non HERDC
TC Beirne School of Law Publications
Version Filter Type
Citation counts: Google Scholar Search Google Scholar
Created: Mon, 24 Feb 2014, 13:21:40 EST by Carmen Buttery on behalf of T.C. Beirne School of Law