Lloyd's Maritime and Commercial Law Quarterly
THE TERMINATION OF CONTRACTS: THREE VIGNETTES
Sir David Foxton *
Prompted by Professor Jordan English’s recently published Discharge of Contractual Obligations, this article explores three aspects of the law relating to the termination of contracts for breach. The first concerns the continuing utility of the “warranty” category of contractual term, and the extent to which statutory use of the term presents an obstacle to its abandonment. The second considers the law of anticipatory breach, the contribution made by Lord Mustill to our understanding of the legal principles, and Lord Mustill’s first professional foray into that topic. The third considers the relationship between termination (both “at law” and pursuant to a contractual right) and the recovery of loss of bargain damages, and the significance in this context of the nature of the breach, issues of causation and the mechanism of termination.
I. INTRODUCTION
It is a truth which ought to be universally acknowledged that anyone speaking to university law students in the summer term should choose a topic on the examination syllabus. In that spirit, my subject is three topics relating to the termination of contracts. I leave you free to elect between one of the following reasons for my failure to offer a more comprehensive treatment of the subject: (i) limitations of time; (ii) ignorance; or (iii) a desire not to affect sales of Professor Jordan English’s outstanding monograph Discharge of Contractual Obligations,1 which has largely stimulated my current interest in the topics discussed. If these all prove to be bad reasons, that may not prevent my relying on a good one later.
This is an area of law which is notoriously beset with arguments about terminology. Without making any claim that these represent the most appropriate usage, in what follows:
- (i) I use the expression “repudiatory breach” to mean any breach or set of breaches which, either because of the nature of the term breached or the consequences of the breach(es), justifies termination “at law”.2
- (ii) I refer to a contractual term as a condition when a breach of that term gives a right to terminate the contract at law.3
- (iii) By “at law” I mean the right of termination which arises from a “repudiatory breach” as so defined which is exercised by “accepting” the breach.
* Judge of the Court of Appeal of England and Wales. This is an expanded version of a talk given to the Law Society of St Anne's College, Oxford on 6 May 2026.
1. Jordan English, Discharge of Contractual Obligations (Oxford, 2025) (hereafter “English”).
2. With apologies to Professor English: Ibid, [2.47].
3. Ie, in its promissory sense.
The Termination of Contracts
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