RETURN OF THE UNDEAD: FUNDAMENTAL BREACH DISINTERRED

  • Richard F Devlin
Keywords: Remedies, Unconscionability, Contracts, Exculpatory Clause, Fundamental Breach

Abstract

Despite the efforts of some judges and academics to eliminate fundamental breach from the corpus of Canadian contract law, a number of recent cases suggest that the doctrine continues to attract the imagination of a number of judges. In this paper the author considers three possible futures for fundamental breach: exorcism, substantiation and transubstantiation. He suggests that the third option is the most desirable and that the most coherent development of the law would be to incorporate fundamental breach into the emergent doctrine of good faith performance.

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Published
2007-09-01
Section
Legal Commentary