Legal concept catalogue

Effective termination for breach

Was the purported termination of the contract legally effective?

Elements: TERM-0002, TERM-0003

Termination under an express contractual right

Did the terminating party validly exercise an express contractual termination right?

Elements: TERM-0006, TERM-0007, TERM-0004, TERM-0008

Defences: TERM-0017, TERM-0018, TERM-0019

Termination for repudiatory breach at common law

Was the innocent party entitled to, and did it, terminate at common law for repudiatory breach?

Elements: TERM-0015, TERM-0016, TERM-0014

Defences: TERM-0017, TERM-0018, TERM-0019

Notice and cure requirements complied with

Were the contractual notice and cure requirements satisfied before termination?

Elements: TERM-0009, TERM-0010

Termination right exists and covers the breach

Does the contract give the terminating party a right to terminate that applies to this breach?

Triggering event occurred

Did the event that triggers the termination right actually occur, as defined by the contract?

Defences: TERM-0020

Valid termination notice

Was the termination notice clear, unequivocal, properly authorised, timely and served as the contract requires?

Breach notice complied with the contract

Was a breach notice given in the form, with the content, and by the method the contract requires?

Cure period expired without cure

Did the cure period run its full length without the breach being remedied?

Breach of a condition

Was the term breached a condition, so that any breach of it justifies termination?

Serious breach of an innominate term

Did the breach of an innominate term deprive the innocent party of substantially the whole benefit of the contract?

Renunciation

Did the other party, by words or conduct, show a clear intention not to perform its essential obligations, or that it could not perform them?

Repudiation accepted

Did the innocent party clearly and unequivocally accept the repudiation and bring the contract to an end?

Repudiatory breach established

Did the other party commit a repudiatory breach?

Elements: TERM-0011, TERM-0012, TERM-0013

Defences: TERM-0020

Common law termination rights not excluded

Did the contract leave the common law right to terminate for repudiatory breach available?

Affirmation (election to continue)

Did the terminating party, knowing of the breach and its right to terminate, elect to affirm the contract?

Waiver of the breach or of strict compliance

Did the terminating party waive the breach, or its right to insist on strict compliance?

Estoppel from past tolerance

Is the terminating party estopped from relying on strict compliance because of a clear representation the other party relied on?

Obligation varied or suspended

Had the relevant obligation (e.g. a sales target) been validly varied or suspended before the alleged breach?

Consequences of an ineffective termination

If the purported termination was ineffective, what follows for each party?

Elements: TERM-0022

Wrongful termination accepted as repudiation

Did the purported termination amount to a repudiation that the counterparty accepted, ending the contract?

Damages for wrongful termination

What damages can the counterparty recover for the wrongful termination?

Damages for the breach that prompted termination

What damages can the terminating party recover for the other party's breach?

Performance shortfall

Did a party fail to meet a contractual performance obligation or target?

Breach notice sent

Was a communication sent identifying a breach and (where relevant) requiring remedy?

Termination notice sent

Was a communication sent purporting to terminate the contract?

Shortfall tolerated or accepted

Did a party, knowing of a shortfall or breach, continue performing, accept it, or say it would not act on it?