Delay in termination

Often a party may be faced with a breach of contract and be unsure whether to terminate the contract. This may be because a party wishes to give the defaulting party an opportunity to remedy the breach or is hesitant in incurring the additional cost and inconvenience in locating another contractor. As a result, the innocent party will often delay in terminating the contract.

One issue that can arise from such delay is that the innocent party may be inadvertently electing to affirm the contract and excluding the ability to terminate the contract. As such, any act that may lead the defaulting party to believe that the contract is still running should be avoided if the innocent party wishes to retain its right to terminate.

If the innocent party has committed an act that leads the defaulting party to believe that the contract is still running, the subsequent attempt to terminate may amount to an unlawful repudiation entitling the defaulting party to terminate the contract