The High Court has re-considered the general rule that a party can justify termination by reference to a failure not mentioned at the time of termination.
By way of background, if a party breaches a contract in a way that, from the view of a reasonable person, has shown a clear intention to abandon and altogether refuse to perform the contract, then the innocent party may accept that breach, bringing the contract to an end. This is called a repudiatory breach of contract.
But when asking whether the termination can be in relation to a breach not mentioned at the time, the Court has ruled that this will not be allowed if, had that failure been pointed out by the terminating party, the other party could have put it right.
In this case the Court held, at the time of termination, the due date for performance of the missed obligations had already passed, so the breaches could not have been rectified.
Lessons ? Parties entering a contract should beware that, despite express terms, the contract may be brought to an end for breaches, even if these are not communicated at the time.
The case? C&S Associates UK Ltd v Enterprise Insurance Company Plc  EWHC 3757 (Comm))
The Court said it is permissible to rely on a repudiatory breach which had not been raised at the time, and even if the other party was unaware of it, to justify an immediate termination.