Editing Breach of contract (section)

==Right to terminate for breach==
A right to terminate a contract arises for:
# ''breach of a condition'' of the contract, no matter how trivial the breach of the condition may be; 
# ''repudiatory breach'', that is an actual breach of an innominate term, where the consequence of the breach is sufficiently serious to give rise to a right to terminate; or
# ''renunciatory breach'' (aka anticipatory breach), where the other party makes clear to the innocent party that it: 
## is not going to perform the contract at all, or 
## is going to commit a breach of a condition, or 
## is going to commit a breach of an innominate term, 
:: and the consequences will be such as to entitle the innocent party to treat the contract as at an end.

An innocent party is therefore entitled to elect to terminate a contract only for breach of a condition of the contract, repudiatory breach or renunciatory breach.

To terminate a contract for repudiatory breach, the innocent party must tell the defaulting party. Many commercial contracts include clauses that set out a process whereby notice must be given and in what form. Consequently, if there is a written contract, care should be taken to check the contract terms and to ensure compliance notwithstanding that the other party may, on the face of it, have committed a clear and repudiatory breach. It is only when the defaulting party is told that a repudiatory breach has been "accepted" that the contract is terminated. If the defaulting party is not told the repudiatory breach has been accepted, the contract continues in force. An innocent party is not compelled to exercise its right to terminate, and accept a repudiatory breach. Otherwise, the contract continues in force.<ref>{{cite web |title=Breach of Contract Claims |url=https://hallellis.co.uk/blog/breach-contract-business-agreements/#after-breach}}</ref>

===Repudiatory breaches===
Conduct is repudiatory if it deprives the innocent party of ''substantially the whole of the benefit'' intended to be received as consideration for performance of its future obligations under the contract. Different forms of words are used by courts to express this central concept. The most prominent is whether the breach goes to ''the root of the contract''. Those forms of words are simply different ways of expressing the "substantially the whole benefit" test.<ref>{{cite news |title=Federal Commerce & Navigation Co Ltd v Molena Alpha Inc (The Nanfri) [1979] AC 757 per Lord Wilberforce}}</ref>

Sometimes the innocent party may be deprived of its entitlement to damages for repudiatory breach of contract:
*if the innocent party is ''irremediably disabled from performance'', provided that that inability to perform on the part of the innocent party is not itself attributable to the repudiatory breach;<ref>Cases such as Braithwaite v Foreign Hardwood Company (1905) 2KB 543, British and Beningtons Ltd v North Western Cachar Tea Co (1923) AC 48, and Cooper, Ewing & Co Ltd v Hamel & Horley Ltd (1923) 13 Ll L Rep 590, discussed in England and Wales Court of Appeal (Civil Division), [https://www.bailii.org/ew/cases/EWCA/Civ/2011/87.html Acre 1127 Ltd. (In Liquidation) v De Montfort Fine Art Ltd. (2011)] EWCA Civ 87 (9 February 2011), accessed 13 June 2021</ref>
*if the innocent party has ''a settled intention not to perform''.<ref>Pease, C. and Riach, C., [https://www.inhouselawyer.co.uk/legal-briefing/a-clearer-picture-of-entitlement-to-damages-flowing-from-repudiatory-breach/ A clearer picture of entitlement to damages flowing from repudiatory breach?], ''Legal Briefing'', published May 2011, accessed 13 June 2021</ref>

===Renunciatory breaches===
Conduct is renunciatory if it shows an intention to commit a repudiatory breach. The conduct would lead a reasonable person to conclude that the party does not intend to perform its future obligations when they fall due.<ref name=citati>{{cite news |title=Universal Cargo Carriers Corporation v Citati [1957] 2 QB 401}}</ref>

Showing an intention to perform a contract in a manner which is ''inconsistent'' with the terms of the contract also shows an intention not to perform the contract.<ref>{{cite news |title=Ross T Smyth & Co Ltd v T.D. Bailey, Son & Co [1940] 3 All ER 60}}</ref> Whether such conduct is so severe so as to amount to a renunciatory breached depends upon whether the threatened difference in performance is repudiatory. An intention to perform connotes a willingness to perform, but willingness in this context does not mean a desire to perform despite an inability to do so. To say "I would like to but I cannot" negatives intent just as much as "I will not".<ref name=citati /> Contracting parties must perform contracts in strict accordance with their terms: what was agreed in the first instance when the contract was formed. To do otherwise is therefore a breach of contract.

In the event of a renunciatory breach, the innocent party may:
* choose to accept the breach at once and to terminate the contract, without waiting for the due date of performance, or 
* wait for the time for performance of the contract. 
If the defaulting party does not perform when the time for performance arrives, the contract may be terminated. However, if the defaulting party performs, the right to terminate is lost forever.

Conduct comprising a breach for performance of contractual obligations that have fallen due may be insufficient to be a repudiation. However:
* Nevertheless, conduct may be a renunciation because it would lead the reasonable observer to conclude that there was an intention not to perform in the future, and 
* the past and threatened future breaches taken together would be repudiatory.

The reason for a defaulting party committing an actual breach is generally irrelevant to whether it constitutes a breach, or whether the breach is a repudiation (this is an incident of ''strict liability'' for the performance of contractual obligations). However, the reason may be highly relevant to what such breach would lead the reasonable observer to conclude about the defaulting party's intentions in relation to future performance and therefore to the issue of renunciation. Often, the question whether conduct is a renunciation falls to be judged by reference to the defaulting party's intention, which is objectively evinced by past breaches and other words and conduct.