A ‘shilly-shallying attitude in regard to the contract’ (Lord Dunedin) may discharge a party to a contract otherwise in breach. Procrastination may be so gross and protracted as to amount to repudiation.
Lord Shaw of Dunfermline said: ‘If, in short, A, a party to a contract, acts in such a fashion of ignoring or not complying with his obligations under it, B, the other party, is entitled to say: ‘My rights under this contract are being completely ignored and my interests may suffer by non-performance by A of his obligations, and that to such a fundamental and essential extent that I declare he is treating me as if no contract existed which bound him.’ . . In business over and over again it occurs – as, in my opinion, it occurred in the present case – that procrastination is so persistently practised as to make a most serious inroad into the rights of the other party to a contract. There must be a stage when the person suffering from that is entitled to say: ‘This must be brought to an end. My efforts have been unavailing, and I declare that you have broken your contract relations with me.”
‘the question whether the stage has been reached when procrastination or non-performance’ constitutes repudiation is essentially one of fact.
Viscount Finlay (dissenting on the facts) said: ‘If one of the parties to a contract, either in express terms or by conduct, leads the other party to the reasonable conclusion that he does not mean to carry out the contract, this amounts to a repudiation which will justify the other in treating the contract as at an end.’
Judges:
Lord Shaw of Dunfermline, Lord Dunedin, Viscount Finlay
Citations:
1922 SC (HL) 173
Jurisdiction:
Scotland
Cited by:
Cited – SK Shipping (S) Pte Ltd v Petroexport Ltd ComC 24-Nov-2009
The parties disputed the termination of a charterparty for anticipatory repudiatory breach.
Held: To the extent that the dispute relied on disputes of fact, the court preferred the evidence of the claimant. The defendant had displayed an . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 15 May 2022; Ref: scu.381487