07 Jun

Introduction / Termination at Common Law / Time of the Essence / Termination for Convenience / Termination for Breach / Termination for Material Breach / Express Termination Grounds / Is Termination the Best Option? / Conclusion


This article explores the grounds for termination of a commercial contract, both at common law and under the express terms of the contract.  

Termination at Common Law:  

Under common law, a party may have the right to terminate a contract in the event of a repudiatory breach.  A repudiatory breach occurs when one party to the contract refuses to perform an obligation that goes to the root or essence of the contract.  

It can be either an express refusal or an implied failure to perform. The innocent party must accept the breach and communicate their acceptance to effectively terminate the contract.  

Time of the Essence

In some cases, time may be expressly stated to be of the essence in the contract.  If a party fails to meet a deadline or perform within the specified time frame, it may constitute a repudiatory breach.  

Additionally, time may be considered fundamental if the nature of the contract or surrounding circumstances indicate that time should be treated as essential.  

Termination for Convenience:  

Some contracts include a provision for termination for convenience, allowing one or both parties to terminate the contract without cause or breach.  This termination can be done by providing notice to the other party.  

However, it is important to carefully review the contract's requirements for serving termination notices to ensure compliance.  

Termination for Breach:  

A party may have the right to terminate a contract if the other party has breached its obligations.  To determine if a breach has occurred, the scope of each party's obligations under the contract must be ascertained.  

If a breach is identified, the innocent party can consider whether the breach is repudiatory or anticipatory, allowing them to terminate the contract and seek damages.  

Termination for Material Breach:  

In some cases, a contract may specifically provide for termination in the event of a material breach.  

A material breach is a serious breach of an intermediate or innominate term that goes to the root of the contract.  Parties may agree that any breach, regardless of its significance, gives rise to a right of termination.  

However, the courts may assess whether such a provision allows termination for trivial breaches.  

Express Termination Grounds:  

Apart from common law and contractual rights, there are other grounds for termination that may be specified in the contract.  

These include termination for non-payment, termination for service level failure, termination for insolvency, termination for loss or modification of consents, licenses, or authorizations, and termination for change of control.  

Each of these grounds may have specific requirements and consequences outlined in the contract 

Is Termination the Best Option? 

Before deciding on termination, it is crucial to assess the situation thoroughly. 

Consider the nature and severity of the issue at hand, the impact on the parties' relationship, and the potential consequences of termination.  

It is essential to weigh the benefits and drawbacks of termination against other available options.  In many cases, open communication and negotiation can help resolve contract issues without resorting to termination.  

Parties should try to engage in constructive dialogue to understand each other's concerns and explore potential solutions. This approach can foster a cooperative environment and preserve the business relationship, which may be valuable in the long run. 

If the contract is no longer meeting the parties' needs or if unforeseen circumstances have arisen, renegotiation and contract amendments can be a viable alternative to termination.  

By revisiting the terms of the contract and finding mutually agreeable solutions, parties can adapt the agreement to the changing circumstances and salvage the commercial relationship. In situations where disputes arise, mediation or other forms of alternative dispute resolution (ADR) can be effective in resolving conflicts without terminating the contract. 

Mediation involves a neutral third party facilitating discussions between the parties to reach a mutually acceptable resolution. ADR methods provide a less adversarial approach and can help maintain the business relationship while finding a fair solution. Before pursuing termination, parties should consider whether legal remedies are available and appropriate for the situation.  

Legal action should be a last resort, as it can be time-consuming, costly, and may strain the relationship further. However, in cases of severe breaches or irreconcilable differences, seeking legal advice and exploring the available remedies may be necessary. 

In the event of a breach or contract issue, parties have a duty to mitigate their damages.  This means taking reasonable steps to minimize the losses suffered as a result of the issue. Mitigation efforts can include finding alternative suppliers or customers, seeking substitute goods or services, or exploring other business opportunities. By actively mitigating damages, parties can potentially avoid the need for termination. 


Termination of a commercial contract can be a complex process, involving considerations of common law rights and the express terms of the contract.  

It is crucial for parties to thoroughly understand their rights and obligations before attempting to terminate a contract and also to consider the other options that might be available to them to resolve their differences.  

By carefully reviewing the contract, identifying breaches, and following the appropriate procedures, parties can navigate the termination process effectively.  Seeking legal advice is always recommended to ensure compliance with the law and protect one's interests.

See also Thinking of terminating a contract?

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Note: This publication does not necessarily deal with every important topic nor cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice. The information contained in this document is intended to be for informational purposes and general interest only. 


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