The effects of breach of contracts

Abstract

Notwithstanding the fact that Roman Law provided for individual contracts and had no general theory of contracts as in modem systems of law, the origins of the law of obligations can be traced under Roman Law. Thus, Chapter one of the thesis will deal with a historical development of the effects of breach of contracts, and will start from Roman Law times, where the remedies provided for the non performance of the obligation were very much different from those available in modern law. This chapter will contain an analysis of the law as it stood from Roman Law times up to under the Code de Rohan, Code Napoleon and finally in the Ordinances V of 1859 and Ordinance VII of 1868. In chapter two the thesis will concentrate on the duty of the contracting parties to adhere to what they have agreed in the contract, and also on the degree of diligence which must be used in performing the obligation. Moreover, the chapter will focus on the mode of performance of the obligation making reference to time, place of performance, persons involved in the performance of the obligation, and identity of the performance. Finally this chapter will treat the various types of obligations, namely the obligations to give, to do and of forebearing from doing. Chapter three will then concentrate on what constitutes breach of contracts, and thus will be dealing with absolute non-performance and breach by delay. Moreover, importance will be given to the mode of intimation and service of the judicial act which serves to put the debtor in mora. Finally, the chapter will be concentrating on the effects of mora and the effects of the cessation of such mora. The thesis will then proceed with the chapter which is most central to the whole thesis, that dealing with remedies for breach of contracts. Thus, it will examine in detail the remedies of specific performance and also that of compensation for damages and interests. This remedy is subdivided into three, namely, conventional liquidation, legal liquidation, and judicial liquidation which is the most frequent mode of liquidation. Finally, the chapter will also deal with the remedy of Exceptio non adimpleti Contractus which is available only in French Law and the remedy of Dissolution of the contract. Chapter five will finally concentrate on the doctrine of frustration, which is available only in the common law system and we do not have its equivalent in Maltese law. This doctrine concerns the supervening events which make the performance of the obligation impossible as a consequence of which the contract would be frustrated and thus the contracting parties would be exonerated from responsibility for non-performance.