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Fundamental breach - Wikipedia, the free encyclopedia Fundamental breach, sometimes known as a repudiatory breach, is a breach so fundamental that it permits the aggrieved party to terminate performance of the contract, in addition to entitling that party to sue for damages. In English law, fundamental breach was first examined by the House of Lords in the Suisse Atlantique case [1966] 2 All E.R. 61, wherein they decided that a contract can be voided if a breach of a fundamental term can be found. That is, a breach of a condition that "goes to the root of the contract". en.wikipedia.org /wiki/Fundamental_breach   (339 words)

Breach - Wikipedia, the free encyclopedia Breach, in fortification, the ruins made in any part of a structure by a destructive weapon, in order to storm the place, or take it by assault Breach of contract, a situation in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performanc Fundamental breach or repudiatory breach, a breach so fundamental that it permits the aggrieved party to terminate performance of the contract, in addition to entitling that party to sue for damages en.wikipedia.org /wiki/Breach   (203 words)

Supreme Court of Canada - Decisions - Hunter engineering co. v. Syncrude canada ltd. A fundamental breach occurs where the event resulting from the failure of one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit that the parties intended should obtain from the contract. Fundamental breach represents an exception to the rule that the contract continues to subsist and that damages be paid for the unperformed obligation for it gives the innocent party an election to put an end to all unperformed primary obligations of both parties. The doctrine of fundamental breach should be replaced with a rule that holds the parties to the terms of their agreement, provided the agreement is not unconscionable. scc.lexum.umontreal.ca /en/1989/1989rcs1-426/1989rcs1-426.html   (7545 words)

Breach Contract   (Site not responding. Last check: 2007-10-12) Breach of contract is a legal concept in which a binding agreement or bargained-for exchange is not honored by one of the parties to the contract by non-performance or interference with the other party's performance. A breach may be a minor one (also called a partial breach or an immaterial breach), in which case the non-breaching party will not be entitled to an order for performance of its obligations, but only to damages. A breaching round is a shotgun shell which is designed to blow off the hinges of a door without harming the operator or the occupants of the room to be entered. www.wwwtln.com /finance/22/breach-contract.html   (1244 words)

The notion of "fundamental breach" in the light of CISG case law Fundamental breach is a milestone concept of the United Nations Convention on Contracts for the International Sale of Goods (hereinafter CISG), since it is the necessary precondition for avoiding the contract under articles 49(1)(a) and 64(1)(a)). According to legal scholars [21] and case law [22] the breach is fundamental regardless of whether it occurred in respect of a main obligation or an ancillary obligation (even though this distinction is frequently used in civil law countries to classify the importance of an obligation). Thus, it has been argued [25] that the breach is fundamental when the buyer's intended use of the goods becomes impossible, or when the party has lost interest in receiving the performance. www.cisg.law.pace.edu /cisg/biblio/graffi.html   (8048 words)

Heffron v. Imperial Parking Co. et al. The respondent in turn has argued that by reason of the fundamental breach of the contract of bailment by the appellant the contract has been terminated including the exculpatory term and the appellant is therefore liable to the respondent for damages thereby occasioned. Whether this result is obtained by applying the doctrine of fundamental breach as a matter of contract construction or as an independent principle of law, it is clear that the phenomenon is alive and prospering in the law of this Province. The appellants upon the unexplained failure to deliver are, therefore, faced with a fundamental breach of the contract of bailment during the term thereof or breach of duty with respect to the disposition of the keys to the automobile after the term of the bailment. www.umanitoba.ca /faculties/law/Courses/Fainstein/Heffron.htm   (3958 words)

[No title] Based upon the Secretariat Commentary on the fundamental breach governing provision under the 1978 Draft Convention,[113] some authors conclude that the contract’s overall value and the loss suffered by the buyer as a result of the non-performance are to be considered in determining fundamental breach. From the wording of the conditional clause “unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such result,”[289] one may infer that there is a presumption of foreseeability of the consequences of the breach. Already at the Hague Conference, the concept of fundamental breach under ULIS Article 10 was criticized on the grounds that it was too subjective, in that it relied on a test that required the breaching party to anticipate whether or not the non-breaching party would have entered into the contract had he foreseen the breach. www.cisg.law.pace.edu /cisg/biblio/koch.html   (17678 words)

Supreme Court of Canada - Decisions - Guarantee Co. of North America v. Gordon Capital Corp. The alternative approach addressed the consequences of fundamental breach as a matter of construction of the terms of the contract rather than a categorical rule of law. If, as a matter of contractual interpretation, the parties clearly intended an exclusion clause to continue to apply in the event of fundamental breach, courts were required to enforce the bargain agreed to by the parties, rather than applying a rule of law to rewrite the terms of the contract. At the stage of negotiation as to the consequences of a breach, there is everything to be said for allowing the parties to estimate their respective claims according to the contractual provisions they have themselves made.... scc.lexum.umontreal.ca /en/1999/1999rcs3-423/1999rcs3-423.html   (8662 words)

Doctrinal Update Assault was added as a breach fundamental to counter disturbing trends identified by field units and the CTCs indicating that when planning breach operations, we, as a force, were losing focus on the objective. The deletion of the Assault and the Covert breach should not be interpreted to mean that the assault force no longer requires mobility assets to breach protective obstacles, nor does it mean that there will never be a COA requiring a breach executed under covert conditions. Breaching is a combined arms operation designed to project combat forces to the far side of an obstacle with the least degradation in maneuver and loss to personnel and equipment. www.globalsecurity.org /military/library/report/call/call_01-19_ch1.htm   (1213 words)

Protect Yourself   (Site not responding. Last check: 2007-10-12) Fundamental breach was therefore held to be a rule of law operating regardless of the parties’ intentions. In light of the unnecessary complexities the doctrine of fundamental breach has created, the resulting uncertainty in the law, and the unrefined nature of the doctrine as a tool for averting unfairness, I am much inclined to lay the doctrine of fundamental breach to rest, and where necessary and appropriate, to deal explicitly with unconscionability. The contractor submitted that soil conditions were fundamentally different from those shown, that the road grade as designed by the department was unbuildable in the time specified, and that the distance over which the plaintiff had to haul the material was substantially longer than indicated, all of which caused real and substantial loss. www.glaholt.com /publications/Articles/Protect.htm   (10643 words)

Ivankovich article on remedies under NB's consumer products warranty legislation (Part 2) Where the breach is remediable and the breach is not a [sic] fundamental character, the retailer or manufacturer should have a reasonable opportunity to make good the breach, including any breach in the implied warranties of title, freedom from encumbrances, and quiet possession. Size, weight, method of attachment or installation and nature of the breach would also, it is submitted, be illustrative considerations in attempting to determine whether the buyer is excused on the grounds of significant inconvenience from having to provide the seller with a reasonable opportunity to rectify his breach under section 14(1)(a). On the other hand, if major breach, as suggested in Gauvin, is to be equated with breach of condition or fundamental breach under the general sales law, the seller could well be denied the opportunity to rectify because of the special importance which the courts have traditionally attached to the seller's title obligation. law.unb.ca /cpwala/Ivan202.htm   (7955 words)

Unfair Constructive Dismissal   (Site not responding. Last check: 2007-10-12) Whether such a dismissal is a fundamental breach of contract is to be determined by the common law contract test and not by asking whether or not the employer acted reasonably or unreasonably etceteras (being the statutory test under s.98(4), Employment Rights Act 1996): Western Excavating (ECC) Ltd v Sharp (1978). A 'fundamental breach of contract' is a breach of an express or implied term or condition of the contract that 'goes to the root' of the contract, i.e. This was a case in which there was a fundamental breach of contract by the employer but the employment tribunal held that her claim failed because, by accepting an alternative job offered by the employer following the breach, she had waived the breach of contract. www.employment-law-expert.co.uk /ucd.htm   (2246 words)

Kaltons Internet & Internet Lawyers comment on the Employment Appeals Tribunal The Tribunal having found, as a matter of fact, that there had been a breach of the implied term, the only conclusion it was entitled to come to was that there was a fundamental breach of the claimant's contract of employment, entitling her to resign and claim constructive dismissal. Any breach of that implied term is a fundamental breach amounting to a repudiation since it necessarily goes to the root of the contract. Accordingly, a finding that there had been conduct amounting to a breach of the implied term would inevitably mean that there had been a fundamental or repudiatory breach that necessarily went to the root of the contract. www.kaltons.co.uk /articles/243.cfm   (783 words)

LIST OF CASES / Busfield v Sodexho Ltd EAT 2003   (Site not responding. Last check: 2007-10-12) The Leeds Employment Tribunal concluded that there had been two fundamental breaches of contract, firstly the subordination of Ms Busfield to another employee, (which was in fact affirmed by her) and secondly the implied threat to discontinue paying her salary. The latter was a fundamental breach of the implied term of trust and confidence giving rise to constructive unfair dismissal. When Sodexho offered to continue paying her a salary as a gesture of goodwill, there had been a fundamental breach of the implied term of trust and confidence, as Ms Busfield was legally entitled to salary for as long as she was still an employee. emplaw.co.uk /load/4frame/data/03SC004.htm?PageTitle=LISTOFCASES/...   (658 words)

bronster.html   (Site not responding. Last check: 2007-10-12) The entire thrust of the Attorney General's investigation is to investigate allegations of breach of fiduciary duty by individual trustees to the detriment of the trust and its beneficiaries. The settled practice of courts of equity is to regard the report of a Master upon questions of fact referred to him as having substantially the weight of the verdict of a jury, and his conclusions are not to be set aside or modified without clear proof of error or mistake on his part. Indeed, any of the numerous breaches of the duty to account alone, including the secret accumulation of $350 million in income and concealment from the Court and the beneficiaries, is sufficient for the Court to remove the trustees under Hawaii law. starbulletin.com /98/09/10/news/bronster.html   (5082 words)

1193430 Ontario Inc. v. Boa-Franc Inc. | Toronto Lawyers | Ottawa Lawyers | Ontario Attorneys | Canadian Lawyers: ... The issue on appeal is whether the trial judge erred in implying this term, or whether she erred in finding that breach of the term amounted to just cause for termination of the contract, without analyzing whether the breach amounted to a fundamental breach entitling the manufacturer to terminate the contract without notice. In fact, a breach of contract by one party does not relieve the innocent party of its duty to perform the contract unless the breach is fundamental or goes to the root of the contract: see generally Hunter Engineering Co. v. This factor is the basis for the very important distinction between an ordinary breach, on which an innocent party can always sue for damages, and a fundamental breach, which has to have a serious effect on the other party and therefore justifies termination of the agreement. heydary.com /resources/caselaw/1193430_ontario_inc_v_boa_franc_inc.html   (5906 words)

Commercial Leasing Newsletter: Landlord's Legal Remedies   (Site not responding. Last check: 2007-10-12) The landlord can refuse to accept the tenant’s fundamental breach of the lease and insist on performance of the terms of the Lease and sue for arrears of rent owing and as they accrue. Once the rent is in arrears by at least 15 days, the landlord can accept the tenant’s repudiation of the lease arising from the fundamental breach, terminate the lease, and sue for the arrears of rent owing up to that time. Once the rent is in arrears by at least 15 days, the landlord can accept the tenant’s repudiation of the lease arising from the fundamental breach and terminate the lease with notice to the tenant that the tenant will be held liable for the rental arrears and the loss of future rent and other damages. www.cohenhighley.com /articles/clnews001.htm   (885 words)

Books Published by AJ.   (Site not responding. Last check: 2007-10-12) FUNDAMENTAL RIGHTS ENFORCEMENT ACTION – Breach of fundamental rights by officers of the Nigeria Police Force – Whether the Nigeria Police being a federal agency may be sued before a Federal High Court or State High Court – When the Federal High Court will have exclusive jurisdiction to hear fundamental rights enforcement action. If a person’s fundamental right is infringed or threatened in matters pertaining to copyright, patents, designs or such like matters under section 7 of the Federal High Court Act or Section 230(1) of Decree 107 of 1993, he can commence a proceeding under the Fundamental Rights (Enforcement Procedure) Rules in the Federal High Court. Fundamental Rights (Enforcement Procedure) Rules 1979, wherein by the provisions of ORDER 1 Rule 2 court was defined as “Court means the Federal High Court or the High Court of a State”. www.humanrightsnigeria.org /ojoge.htm   (3775 words)

Unfair constructive dismissal Constructive dismissal occurs where an employee resigns in circumstances where she is entitled to do so because of a significant and fundamental breach of the employment contract by the employer. 4 the employee must not delay too long in terminating the contract in response to the employer's breach, otherwise she may be deemed to have waived the breach and agreed to vary the contract. On the other hand, if such a breach has occurred and your client delays in resigning in response to the breach, she may be taken to have waived the breach should she decide to resign at a later date. www.eoc-law.org.uk /Default.aspx?page=2825   (3053 words)

Remedies under New Brunswick's consumer products warranty law/legislation The concept of a breach that 'goes to the root' of the contract is helpful in either case to characterize a situation that should give rise to rescision [sic] as a remedy. The restriction of rejection rights to cases of major breach after the sixty day period has expired is in recognition of the seller's interests in not being subjected to such a drastic remedy indefinitely unless the buyer's interests clearly require it, as they do in the case of major breaches. For major breaches, the consumer must elect to reject within a reasonable time after he or she discovers the breach, or ought to have discovered it, whichever time comes earlier. law.unb.ca /cpwala/remedies.htm   (3363 words)

CISG 25 Years Special Project: Schwenzer, Ingeborg, Avoidance of the Contract in Case of Non-Conforming Goods (Art. 49 ... Consequently, it is not surprising that courts have found a fundamental breach of contract to exist where delivery was made by the seller in derogation from the agreed central features of the goods, such as genetically not modified food. Though the objective essential nature of the defect is always a necessary condition to establish a fundamental breach of contract, it will not always be sufficient. In the case of accompanying documents, the question of whether the buyer may avoid the contract must be decided by resorting to the general mechanisms of the Convention already established for determining a fundamental breach. 25.cisg.info /content/publikation.php?id=13   (2123 words)

Couriers' Liabilities The definition of the term "fundamental breach" in Canada is to be found in the March 3, 1989 Supreme Court of Canada decision of Hunter v. But if the Courts are holding that all exculpatory language does not simply vanish in the event of fundamental breach they are requiring that exculpatory language meet very high standards in order to exonerate the Defendant from liability in such cases. Dickson C.J.C., writing for the majority stated at page 24 that he was inclined to replace the doctrine of fundamental breach with a rule that holds the parties to the terms of the contract, provided those terms are not unconscionable. ourworld.compuserve.com /homepages/paulfitzgerald1/courier2.htm   (3103 words)

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