Editing Contracts/Anticipatory repudiation
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==Repudiation and retraction== Β | ==Repudiation and retraction== Β | ||
A party is considered to have repudiated a contract when they evidence a lack of willingness or an inability to perform their contractual obligations. A repudiation of a contract by one party (the repudiating party) will entitle the other party (the aggrieved party) to elect to terminate the contract. This is based on objective intentions i.e. the repudiating party's words or conduct.;<ref>''Universal Cargo Carriers Corp v Citati'' [1957] 2 [[Queens Bench Law Reports|QB]] 401; See also {{cite AustLII|HCA|31|1953|litigants=Carr v JA Berriman Pty Ltd |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1953/31.pdf (1953) 89 {{abbr|CLR|Commonwealth Law Reports}} 327] |courtname=auto |date=}}; {{cite AustLII|HCA|23|1989|litigants=Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd |parallelcite=(1989) 166 [[Commonwealth Law Reports|CLR]] 623 at p647 |courtname=auto |date=}}.</ref> This unwillingness or inability to perform a condition must deprive the aggrieved party of substantially the whole of the benefit that they would have received if the remaining obligations were performed under the contract.<ref>{{cite AustLII|HCA|14|1985|litigants=Progressive Mailing House v Tabali |parallelcite=(1985) 157 [[Commonwealth Law Reports|CLR]] 17 |courtname=auto |date=}}.</ref> When such an event occurs, | A party is considered to have repudiated a contract when they evidence a lack of willingness or an inability to perform their contractual obligations. A repudiation of a contract by one party (the repudiating party) will entitle the other party (the aggrieved party) to elect to terminate the contract. This is based on objective intentions i.e. the repudiating party's words or conduct.;<ref>''Universal Cargo Carriers Corp v Citati'' [1957] 2 [[Queens Bench Law Reports|QB]] 401; See also {{cite AustLII|HCA|31|1953|litigants=Carr v JA Berriman Pty Ltd |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1953/31.pdf (1953) 89 {{abbr|CLR|Commonwealth Law Reports}} 327] |courtname=auto |date=}}; {{cite AustLII|HCA|23|1989|litigants=Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd |parallelcite=(1989) 166 [[Commonwealth Law Reports|CLR]] 623 at p647 |courtname=auto |date=}}.</ref> This unwillingness or inability to perform a condition must deprive the aggrieved party of substantially the whole of the benefit that they would have received if the remaining obligations were performed under the contract.<ref>{{cite AustLII|HCA|14|1985|litigants=Progressive Mailing House v Tabali |parallelcite=(1985) 157 [[Commonwealth Law Reports|CLR]] 17 |courtname=auto |date=}}.</ref> When such an event occurs, my performing party to the contract is excused from having to fulfill his or her obligations. However, the repudiation can be retracted by the promising party so long as there has been no material change in the position of the performing party in the interim. A retraction of the repudiation restores the performer's obligation to perform on the contract. | ||
Another rationale for the doctrine of repudiation is based on the breach of an implied term not rendering future performance futile: "[O]ne essential promise which is implied in every contract is that neither party will without just cause repudiate his obligations under the contract, whether the time for performance has arrived or not."<ref>{{cite AustLII|NSWStRp|632|1938|litigants=Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd |parallelcite= |courtname=auto |date=}}.</ref> | Another rationale for the doctrine of repudiation is based on the breach of an implied term not rendering future performance futile: "[O]ne essential promise which is implied in every contract is that neither party will without just cause repudiate his obligations under the contract, whether the time for performance has arrived or not."<ref>{{cite AustLII|NSWStRp|632|1938|litigants=Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd |parallelcite= |courtname=auto |date=}}.</ref> |