Termination for Breach of Contract

Rowan, Solène

doi:10.1093/acprof:oso/9780199606603.003.0003

Cited by 3 publications

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“…102 The pressure to avoid the amount of compensation being decreased directs the employee's focus away from preservation of the employment relationship. 103 Prudent recourse to general principles is crucial to the successful development of the law of the employment contract; conversely there are dangers in developing rules without proper regard to overarching principles. The manner in which the concept of mutuality of obligation has emerged offers a cogent warning here.…”

Section: Further Developmentsmentioning

confidence: 99%

The Autonomy of the Common Law of the Contract of Employment from the General Law of Contract

Brodie¹

2016

The Contract of Employment

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something of a false one in that contract law sets out to provide a framework within which rules appropriate to the varying circumstances and specific needs of nominate contracts can develop. It may be claimed that notions of pluralism underpin the general principles of contract law. Over the last thirty or so years the changes to the content of the employment contract that have occurred have been very significant and some of the more recently created implied terms in law can be viewed, perfectly correctly, as evidence of a profound change in the judicial view of the employment relationship. 2 What is not always appreciated is the extent to which changes in the general contractual framework have facilitated this. Up until the decision of the House of Lords in Liverpool CC v Irwin it could have been said with a strong measure of justification that the test for implication was `necessity' even where default rules were concerned. 3 Of late it has been accepted by the judiciary that the "necessity" involved in implying terms such as mutual trust and confidence is "somewhat protean". 4 Fortunately, there is now acceptance that `to some extent at least, the existence and scope of standardised implied terms raise questions of reasonableness, fairness and the balancing of competing policy considerations." 5 Irwin concerned the landlord and tenant relationship and cogently demonstrates the impact that such an approach can have when judicial deliberations take account of social policy. 6 There the House of Lords implied a term that the landlord was required to take reasonable care of the common parts of the property, such as lifts, stairwells and rubbish chutes. As Atiyah has pointed out such an outcome could hardly be said to be based on a test of necessity. 7 By way of contrast it is striking to note that in Australia a successful attempt was made in Commonwealth Bank v Barker to deny the existence of the implied obligation of mutual trust and confidence on the basis that it is not necessary to the functioning of the employment relationship. 8 The High Court applying the test set out in Byrne v Australian Airlines that absent the implication, "the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined" or the contract would be "deprived of its substance, seriously undermined or drastically devalued". 9 Such a rigorous test for implication is favoured as a means of excluding consideration of the policy concerns that have 2 In Johnson v Unisys [2003] 1 AC 518 Lord Hoffmann observed that `over the last 30 years or so, the nature of the contract of employment has been transformed…The contribution of the common law to the employment revolution has been by the evolution of implied terms in the contract of employment. The most far reaching is the implied term of trust and confidence. But there have been others.'

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Section: Further Developmentsmentioning

confidence: 99%

The Autonomy of the Common Law of the Contract of Employment from the General Law of Contract

Brodie¹

2016

The Contract of Employment

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“… As it happens, I believe that the argument of this paper would lead parties never to frame their remedies in quasi‐contractual terms, but if they did so frame them, then in principle there is no objection to this. My objection, or rather advice to those parties, would be that this framing would not work well.…”

Section: Some Logical Problems With the Three Interests Modelmentioning

confidence: 99%

Better thanFuller: A Two Interests Model of Remedies for Breach of Contract

Campbell¹

2015

Modern Law Review

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The attempt to combine the contractual interests properly so-called with the restitution interest in the Fuller and Purdue three interests model of remedies for breach of contract is ineradicably incoherent. Stimulated by reflection on contemporary restitution doctrine's understanding of the quasi-contractual remedies of recovery and quantum meruit, this paper argues that the complete elimination from the law of contract of the restitution interest, which incorporates those remedies into the three interests model, would improve both the coherence of the model of contractual interests and the substantive law of remedies for breach.

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Breach of Contract and Damages for Non-Pecuniary Loss

Kryla-Cudna

2018

SSRN Journal

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The purpose of this article is to investigate whether non-pecuniary interests of the parties should be protected in contract law and what should be the scope of such protection. The paper sheds light on the theoretical framework of contract remedies and claims that moral damages are necessary for an adequate protection of the interests of the parties to a contract. It further investigates the policy arguments against the recoverability of non-pecuniary loss in contract law and argues that such arguments cannot be considered a sufficient justification for a bar to moral damages. Finally, based on a survey of case law from several European jurisdictions, the article provides insight into the kinds of non-pecuniary consequences that may arise from a breach of contract.

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Termination for Breach of Contract

Cited by 3 publications

References 0 publications

The Autonomy of the Common Law of the Contract of Employment from the General Law of Contract

The Autonomy of the Common Law of the Contract of Employment from the General Law of Contract

Better thanFuller: A Two Interests Model of Remedies for Breach of Contract

Breach of Contract and Damages for Non-Pecuniary Loss

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