Breach of a term as to payment of the price as repudiatory
In relating the above principles to the facts of this present case, it is important to stress from the outset that the nature of the Parties’ contract, an open agreement for sale, envisaged a singular, lump sum payment of USD$350,000, inherently implying that punctual payment was a fundamental aspect, a breach of which would strike at the contract's foundation, constituting repudiatory breach.
This means that notwithstanding the Plaintiff's assertions, the Defendant's purported acceptance of the post-termination payment of the balance of the purchase price, quantified at Ghc.245,079.76, does not operate to resuscitate the antecedently terminated contract of sale. Rather, such payment and acceptance, even if true, are properly referable to a novated agreement, as indeed the Defendant rightly posits in its Statement of Case. The law is clear: a terminated contract requires fresh consideration to be revived, and a mere payment of an outstanding balance does not suffice to reinstate the original agreement.
Consistent with established authority therefore, and judging from the Plaintiff's lack of genuine intent to promptly settle the purchase price, we do not think we are able to lend the authority of this Court to any proposition that denies the Defendant’s entitlement to terminate in this case. Indeed, it would be a regrettable development of the law of contract to hold that a Party who suffers such cynical repudiation should be compelled to keep the contract alive and sue only for monetary relief.
Now in what circumstances will a Party’s conduct be repudiatory? A renunciation of a contract occurs when a Party shows an intention not to perform or declares inability to perform essential obligations, explicitly or through conduct. This can happen before or at the time of performance. The test is whether a reasonable person would conclude the Party no longer intends to be bound, including actions inconsistent with obligations or refusal to perform unless extra conditions are met. See Chitty on Contract 32nd Ed. vol. 1, paragraph 24-018 at page 1750.
