Breach — common mistakes

In problem questions, always clearly identify whether the breach is actual or anticipatory. If it is repudiatory, you must discuss the two options available to the innocent party (acceptance or affirmation) and the legal consequences of each choice, citing relevant cases like Hochester v De La Tour and White & Carter (Councils) Ltd v McGregor. Also consider if a party's attempt to terminate might be wrongful.

No. The right to terminate (repudiate) the contract only arises from a breach of a condition or a sufficiently serious breach of an innominate term (a 'repudiatory breach'). For a breach of warranty, your only remedy is to claim damages; you must still perform your own obligations.

No, you do not have to wait. This is an anticipatory breach. Following the principle in Hochester v De La Tour, you have the option to accept the repudiation immediately, treat the contract as terminated, and start a claim for damages straight away.

Not necessarily, but it is often the safer option. Affirming the contract keeps it alive, which means you are also still bound by it. If an unforeseen event then frustrates the contract, as in Avery v Bowden, you could lose your right to claim damages. Furthermore, the right to affirm is limited by the 'legitimate interest' principle from White & Carter v McGregor, so you cannot affirm simply to penalise the other party.

This is a dangerous situation. If you terminate without the legal right to do so, you have committed a 'wrongful termination'. This is itself a repudiatory breach, which gives the other party (the one who committed the original minor breach) the right to terminate the contract and sue you for damages.