Breach of Contract

Abstract

So long as contracts are observed according to their terms there is little call for the law to intervene. Problems arise when a party fails to perform. This situation is known in both Scottish and South African law as ‘breach of contract’ although the term ‘non-performance’ is preferred by the Principles of European Contract Law. This chapter considers how the main problems thrown up by breach of contract have been solved in the two jurisdictions. In neither jurisdiction has the legislature provided much assistance. In both there has been a certain mixing of civil law and English law influences, combined, most importantly, with continuing attempts to make and keep the law functional and just. The solutions devised by the judges are compared with the quasi-legislative solutions of the Principles of European Contract Law.