The doctrine of fundamental breach in contract law

Abstract

The doctrine of fundamental breach for which Karsales v. Wallis, Suisse Atlantique and, more recently, Photo Production v. Securicor Transport are key decisions, is one of the most discussed subjects in English contract law. It might be thought that all there is to be said about fundamental breach has already been said. This is not far from the truth if investigation of it merely continues the all too familiar debate whether the doctrine represents a rule of law rather than a rule of construction. On further scrutiny, however, there is still very much amiss in our understanding of fundamental breach. In particular, we do not seem to have really come to grips with what we shall see to be the crucial problem in fundamental breach, namely: when is a performer under a contract liable for his own misperformance notwithstanding the presence of an exception clause prima facie exempting him from liability? Show more