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Scope of CCLA.pdf
Scope_of_CCLA.pdf
Showing 7-8 out of 15
Scope of CCLA.pdf-Scope of CCLA Exclusion of Sale
Scope_of_CCLA.pdf-Scope of CCLA Exclusion of Sale
Scope of CCLA.pdf-Scope of CCLA Exc...
Scope_of_CCLA.pdf-Scope of CCLA Exclusion of Sale
Page 7
●
Courier gets job prior to 1st June on equally good terms starting on 4th July
Defence:
the writ is premature - no breach can occur until 1st June
P:
argued similarity between this situation and Cort v Ambergate - only material diff is that the
writ was issued prior to performance date
COURT
Finds for P
●
Innocent party can sue immediately, can wait until date of performance or ignore
repudiation
●
P discharged from showing he was ready and willing from the time of the repudiation
○
Allowing mitigation to take place: only need to show you were ready and
willing to perform up until the repudiation
Damages available for anticipatory repudiation
●
Actual breach: buyer gets diff between market price of goods at breach date and agreed
price
●
Anticipatory: buyer not obliged to mitigate immediately. Once the due date for
performance passes then the buyer must mitigate. Damages measured as of the breach
date. Buyer entitled to hold the contract open until what would have been the
performance date and then mitigate by obtaining alternative goods.
●
IF BUYER ACCEPTS REPUDIATION:
buyer expected to mitigate upon
acceptance
Ignoring Repudiation and Affirming Contract
Innocent party given an
election:
cancel or affirm
●
If the innocent party elects to affirm - contract remains in full effect
○
Duty to mitigate is not invoked
White and Carter (Councils) Ltd v McGregor
FACTS
●
D contracted to display advertisements on public litter bins for 3 years
●
Shortly after agreement - repudiated
●
Council wanted the contract price and could complete the contract without any further
involvement from D
○
Displayed ads (completed their obligations) and brought an action
COURT
●
If the work is done - P can get the price
●
Since repudiation was not accepted - no duty to mitigate
●
CCLA
○
s 36
○
s 38: there is no right to cancel if the party has affirmed the contract
○
s 41: when cancellation may take effect - must be known to the other party by
Page 8
words or conduct or both
The Election
●
Once the election has been communicated to the other party it is BINDING and
irrevocable -
Jansen v Whangamata Homes
●
Election to affirm precludes the right to cancel for same breach
○
s 38
●
Only sufficient you know the circumstantial facts, not the legal rights -
Hughes v
Huppert
○
E.g. Hughes knew that agent had made a false representation to him that the
section was a drive on section - purchaser carried on as he did not know he had
the legal right to cancel
Unaccepted Repudiation + Waiver
The party can move forward without accepting the repudiation as well as not performing their
part of the agreement after the repudiation
●
The can sue on date of performance for actual breach
●
They can rely on the repudiation as a waiver of the condition precedent and as such do
not have to show that they were ready and willing to perform their part of the bargain
on the date of performance
Case of
Turnbull
:
sale of goods case - shows that the usual way of explaining anticipatory
repudiation as giving rise to either an election to cancel the contract or to affirm the contract
needs refinement
Peter Turnbull v Mundus
FACTS
●
Essential term of the contract for the sale of oats that the buyer nominate a ship by a
certain date
○
Condition precedent
to the seller’s obligation to load the oats that the seller
choose the ship by specified date
●
Seller repudiated - buyer did not nominate ship and bought other oats on the market
Buyer:
claim for loss of bargain damages for an actual breach
Seller:
argued they were never obliged to deliver because buyer did not nominate vessel - the
buyer did not accept their repudiation so they were still obliged to nominate a vessel.
COURT
●
The obligation to nominate a vessel was waived by the continuing and unretracted
repudiation for the seller
●
This entitled the buyer to argue that there had been a waiver of the obligation to
comply with condition precedent - buyer can recover for seller’s failure to deliver
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