Repudiatory breach in construction contracts

If one of the parties to a contract fails to perform their obligations, this may constitute a breach of contract. A breach of contract may entitle the innocent party to make a claim for damages for the losses it has suffered.

However, where one of the parties to a contract behaves in such a way that it indicates it no longer intends to accept its obligations under the contract, this is considered to be a repudiatory breach (or fundamental breach) allowing the innocent party to terminate the contract and to sue for damages.

Generally the contract will set out behaviour that constitutes a repudiatory breach, and this might include:

Refusal to carry out work.
Abandoning the site.
Removing plant from the site.
Failure to make payments.
Employing others to carry out the work.
Failure to allow access to the site.
Failure to proceed regularly and diligently.
Failure to remove or rectify defective works.

Where repudiation is considered to have occurred, the innocent party can either affirm that the contract will continue or accept the repudiation and so terminate the contract. Either way, it is important that there is some sort of response, as inaction may be considered to be an affirmation of the contract.

Whatever course of action is taken, the innocent party will have the right to claim damages.

An anticipatory breach (or anticipatory repudiation) occurs when one of the parties to the contract declares to the other that they do not intend to perform their obligations under the contract.