Jurisdiction(s):
United Kingdom

Guidance on repudiatory breach: cumulative breaches, the Heisler qualification, and contractual termination overlap—C&S Associates v Enterprise Insurance (English High Court)

Published on: 08 January 2016

Published by a LexisNexis Dispute Resolution expert

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Article summary

Practical implications

This ruling offers a helpful and clear demonstration of the court’s method when carefully judging, in the circumstances of a case, whether a party’s conduct under an agreement truly constitutes a repudiatory breach—either taken in isolation or viewed collectively—so as to allow the other party to accept the repudiation and terminate the contract. It addresses, in particular, in such disputes:

the so-called Heisler qualification, namely the general principle that a party who declines to perform a contract, yet states an incorrect, inadequate, or no reason, may later justify objectively that refusal if facts then existing and at the relevant time supplied a proper basis for it, does not operate where “the point taken is one which if taken could have been put right” (Heisler). In the view of Males J, the Heisler qualification can only arise where the breach in question is anticipatory
the court’s approach when confronted with the potential intersection and overlap between contractual termination for material breach (as provided for contractually) and repudiation at common law. On this issue, Males J considered the dicta of Ramsay J in BSkyB before...

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