Frederick Wilmot-Smith, ‘Termination after breach’

“Most contract textbooks and introductory courses discuss ‘termination for breach’. The orthodox view is that the first word of the label is misleading: the contract, it is said, does not come to an end following termination; instead, its primary obligations, through legal alchemy, transmute into secondary ones. The last two words, ‘for breach’, are usually thought accurate: ‘termination’ is, orthodoxy holds, a response to a breach of contract. The orthodox view has things backwards: the first word is accurate; the second two are not. As Diplock LJ showed, the power to cancel the contract after certain kinds of breach is justified by reasons unconnected with the fact that there was a breach of contract. We should talk of termination after, not for, breach. However, contra Lord Diplock, the responsibility to pay compensatory damages following termination of the contract is not ‘just as much’ a contractual obligation as the primary obligation out of which it arises …”

€ (Westlaw)

Frederick Wilmot-Smith, ‘Termination after breach’, 134 Law Quarterly Review 307 (April 2018).

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