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refusal to perform

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TWO MODELS FOR DISCHARGE OF A CONTRACT BY REPUDIATION
J.W. Carter, Wayne Courtney, Gregory Tolhurst
Journal:

The Cambridge Law Journal / Volume 77 / Issue 1 / March 2018

Published online by Cambridge University Press:

05 February 2018, pp. 97-123

Print publication:

March 2018
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This article compares two models of discharge for repudiation. The first – termed the “mirror image model” – has come to the fore only in recent years. It treats the applicable principles as the mirror image of those that govern discharge for failure to perform a contractual term. Under the second model – the “differentiated model” – repudiation is analysed in terms of various criteria that respond to conceptual diversity within the basis for discharge. The two models diverge, at the heart of the repudiation doctrine, when the issue is whether a reasonable person would regard the promisor as having refused to perform the contract. It is argued that the differentiated model is the better model, and also the preferred view of the common law.