What is the test for repudiation of a contract?
Ontario, Canada
The following excerpt is from Kaplun v. Mihhailenko, 2005 CanLII 16625 (ON SC):
[115] All these cases are summarized and discussed at para. [348], pp. 135 – 149 in Heyday v. Gunraj, supra. They show that where each party to a contract is alleging fundamental breach and repudiation by the other, the court must determine which party committed a substantial breach which amounts to a repudiation, i.e., evidencing an intention no longer to be bound by the terms of the contract. In making this assessment, the test is an objective one, and even a direct or indirect intention by a party allegedly in breach that it wished to continue the contract is not necessarily conclusive in rebutting a finding of a repudiation of the contract. A party may be found to have repudiated a contract even when the party honestly believes it wants to continue with the contract to completion. Discussion
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