The court considered the acceptance of the repudiation of a contract.
Held: Lord Esher MR said: ‘When one party assumes to renounce the contract, that is, by anticipation refuses to perform it, he thereby, so far as he is concerned, declares his intention then and there to rescind the contract. Such a renunciation does not of course amount to a rescission of the contract, because one party to a contract cannot by himself rescind it, but by wrongfully making such a renunciation of the contract he entitles the other party, if he pleases, to agree to the contract being put an end to, subject to the retention by him of his right to bring an action in respect of such wrongful rescission. The other party may adopt such renunciation of the contract by so acting upon it as in effect to declare that he too treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation. He cannot, however, himself proceed with the contract on the footing that it still exists for other purposes and also treat such renunciation as an immediate breach. If he adopts the renunciation, the contract is at an end except for the purposes of the action for such wrongful renunciation; if he does not wish to do so, he must wait for the arrival of the time when in the ordinary course a cause of action on the contract would arise. He must elect which course he will pursue.’
Bowen LJ said that a repudiation ‘only becomes a wrongful act if the promisee elects to treat it as such’, and ‘The claim being for wrongful repudiation of the contract it was necessary that the plaintiff’s language should amount to a declaration of intention not to carry out the contract, or that it should be such that the defendant was justified in inferring from it such intention. We must construe the language used by the light of the contract and the circumstances of the case in order to see whether there was in this case any such renunciation of the contract.’
Judges:
Lord Esher MR, Bowen LJ
Citations:
(1886) 16 QBD 460
Jurisdiction:
England and Wales
Cited by:
Cited – Jet2Com Ltd v SC Compania Nationala De Transporturi Aeriene Romane Tarom Sa ComC 15-Mar-2012
The parties had contracted for the defendant to maintain certain of the claimant’s aircraft. Each now asserted breach by the other.
Held: Neither the terms of the contract nor its character made time of the essence for the payments to be made . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 22 August 2022; Ref: scu.459947