An overview of the types of breach which may give rise to a breach of contract claim and the remedies available.

Key Takeaway

The legal remedies awarded in a breach of contract claim differ depending on the type of breach that has occurred. Remedies include damages (the most common remedy in breach of contract claims), specific performance, injunction(s), termination and/or rescission.

Obtaining legal advice from an experienced contract litigation lawyer is recommended before exercising any purported termination right. While the right to terminate the contract may arise in response to a breach, where a party purports to terminate in response to a breach which does not meet the threshold for termination under the common law, the purported termination may itself amount to a repudiatory breach, exposing the terminating party to a counterclaim.

What Constitutes a Breach of Contract?

When a party fails to perform their duties in accordance with the terms of a contract, breach of contract may have occurred.

To make a successful breach of contract claim, the claimant must prove:

·      A legally binding contract exists

·      The other party has failed to perform their contractual obligations

·      The claimant has suffered loss as a result of the breach

Claim must generally be brought within six years of the breach (or within twelve years for contracts executed as a deed).

What are the Main Types of Breach of Contract?

Depending on its nature and seriousness, a breach of contract will be categorised as repudiatory, actual, anticipatory, or minor under the common law. In addition, many commercial contracts introduce the concept of "material breach" by express provision:

Repudiatory Breach

A repudiatory breach of contract is a serious breach which deprives an innocent party of the benefit of the agreement and generally allows that party to treat the contract as terminated.

As the recent decision in Kulkarni v Gwent Holdings Ltd [2025] highlights however, a repudiatory breach is not automatically irremediable. Parties should therefore be wary of treating the contract as terminated without first obtaining legal advice.

Material Breach

Many commercial contracts contain express provisions entitling a party to terminate where a "material" or "serious" breach has occurred, and has not been remedied within a specified period following written notice.

Whether the breach is "material" will depend on the specific contractual wording and the commercial context.

Actual Breach

An actual breach occurs when a party fails to perform their contractual obligations at the time performance falls due. This includes a complete failure to perform, a partial or defective performance and performance that does not comply with the contractual specification.

Anticipatory Breach

An anticipatory breach occurs when one party makes it clear, before the time for performance has arrived, that they will not perform their contractual obligations - whether by express statement or by conduct that makes performance impossible or inconsistent with the contract.

Minor or Technical Breach

A minor breach may be actionable, but it will not necessarily justify termination. For example, a short delay, administrative error or failure to comply with a non-essential provision may result in damages only if loss can be proved.

What Remedies are Available for Breach of Contract Claims?

The remedies available for breach of contract claim depend on the nature and seriousness of the breach:

Damages

Damages are the usual remedy for breach of contract. The general aim is to put the innocent party in the position it would have been in had the contract been properly performed.

To recover damages, the claimant must prove causation i.e. the losses claimed would not have occurred “but for” the breach and reasonable foreseeability, that the loss suffered was not too remote; Hadley v Baxendale [1854].

The court will also consider whether the contract excludes the loss suffered and whether the claimant has taken reasonable steps to mitigate their loss.

Recovery of Commercial Debts

Where the contract requires payment of a fixed sum, the claim may be framed as a debt claim rather than a damages claim. This is significant as in certain circumstances, a claimant suing for a debt may not need to prove loss in the same way as a damages claim.

Specific Performance

Specific performance is an equitable remedy which requires a party to carry out its contractual obligations. Specific performance is usually only granted where damages would be inadequate and a monetary award would not properly compensate the innocent party, for example where the subject matter is unique.

Injunction

An injunction may be granted to prevent a threatened or continued breach, whether by preventing a party from doing something or requiring them to take a certain action.

Termination

The right to terminate the contract may arise under the contract and/or at common law, where the court will determine whether the breach satisfies the contractual threshold for termination. Our article on terminating a contract and the importance of getting it right goes into more detail.

Rescission

Rescission is an equitable remedy which voids the contract and restores the parties to their pre-contractual position. It is most commonly available where the contract was induced by a vitiating factor such as misrepresentation, duress, undue influence, or fundamental mistake. Unlike termination, which operates prospectively, rescission treats the contract as if it never existed. Where a breach also involves a vitiating factor, rescission may be available alongside or as an alternative to a damages claim.

Before Making a Claim for Breach of Contract

Before bringing a claim for breach of contract, identify the precise term breached, check notice, termination and dispute resolution provisions and preserve relevant documents and evidence of loss.

Review the common defences to breach of contract claims, consider whether urgent relief is necessary, and assess the available dispute resolution methods to inform your dispute resolution strategy.

If you're facing a business dispute and need assistance, our team is here to help. Our dedicated litigation solicitors and barristers have a proven track record of resolving complex breach of contract claims and disputes.

Contact Yulia Barnes and the Barnes Law litigation team to understand the merits of your claim and the options available, based on your circumstances.

This article is not a substitute for formal legal advice, which will vary according to your specific circumstances.