PDF Version: Fundamental Breach and Repudiatory Breach of Contract
Case commented on: John Barlot Architect Ltd. v 413481 Alberta Ltd., 2013 ABQB 388
The doctrine of fundamental breach has caused much confusion, in part because of its relationship to the doctrine of repudiatory breach. The two are entirely different doctrines, but as I tell my students, it doesn’t help that sometimes, the doctrines are merged and the terms used interchangeably.
In effect, the two doctrines are quite separate and the finding of one type of breach leads to a significantly different outcome than a finding of the other. The problem occurs when, as in this decision, the two doctrines are combined and there is no clear indication of the differences between the two. That does not necessarily render the judgment incorrect but it does make for inaccurate references and confusing terminology.
This post will focus on the doctrines of fundamental and repudiatory breach. A shortened version of the facts will be provided, as not all of them are necessary for the purpose of this post.