Termination: The Pitfalls

Adam Robb, Jess Connors and Patrick Hennessey

October 2014

A paper presented to the Society of Construction Law at meetings in Southampton on 27th November 2013, Birmingham on 2nd April and Leeds on 11th September 2014

This substantial (40,000 word) paper looks at different aspects of termination of contract, covering termination of contract for fault at common law; contractual termination clauses, in particular the 2011 JCT standard form; the innocent party's right to elect and remedies at common law. It includes an extensive look at the case law.

A. Introduction - 1. Termination: why is it important? - 2. Other means by which a contract can come to an end - B. Termination of a contract for fault at common law - 1. The basic rules - 2. The test for repudiatory breach of contract in respect of innominate terms - 3. Renunciation/anticipatory breach - 4. Examples of repudiatory breach and/or renunciation: disputes as to interpretation - 5. Examples of repudiatory breach: delay - 6. Examples of repudiatory breach: repeated breaches - 7. Examples of repudiatory breach: late payment - 8. Examples of repudiatory breach: defective work - C. Contractual termination clauses - 1. Introduction - 2. How strictly will the court apply the requirements of a determination clause? - 3. Do determination clauses exclude common law rights of termination? - 4. Can the terminating party advance different reasons later? - 5. What are the consequences of terminating pursuant to an express termination clause? - 6. What sorts of triggers or thresholds are commonly adopted for termination? - D. Determination for cause in the 2011 JCT Standard Form - E. The innocent party's right to elect - 1. The principles - 2. Non-waiver clauses - 3. The implications in practice - F. Remedies at common law.

The authors: Adam Robb, Jess Connors and Patrick Hennessey are barristers practising at 39 Essex Street, London.

Text: 93 pages