Carter, Courtney and Tolhurst, ‘Two Models For Discharge Of A Contract By Repudiation’

This article compares two models of discharge for repudiation. The first – termed the ‘mirror image model’ – has come to the fore only in recent years. It treats the applicable principles as the mirror image of those that govern discharge for failure to perform a contractual term. Under the second model – the ‘differentiated model’ – repudiation is analysed in terms of various criteria that respond to conceptual diversity within the basis for discharge. The two models diverge, at the heart of the repudiation doctrine, when the issue is whether a reasonable person would regard the promisor as having refused to perform the contract. It is argued that the differentiated model is the better model, and also the preferred view of the common law.

JW Carter, Wayne Courtney and Gregory Tolhurst, Two Models For Discharge Of A Contract By Repudiation, Cambridge Law Journal, Published online: 5 February 2018.

First posted 2018-02-07 14:06:42

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