ABSTRACT
To move from the formation of a contractual obligation to its nonperformance is to move, so to speak, from one extreme to another in as much as such a move might appear to overlook the scope and contents of the contractual obligation itself. However, it is arguable that questions of analysis and interpretation of contractual obligations usually arise only when there has been a failure of performance. Consequently, it is not unreasonable to view problems of interpretation, effects and contents of contractual obligations from the position of what a French lawyer would call inexécution.1 Now, in English law, because contractual obligations are based upon promise rather than agreement (Chapter 8 § 5(c)), the overwhelming tendency is to talk in terms of a breach of contract (la rupture) and not non-performance (inexécution). Nevertheless, the idea non-performance can become relevant when one wishes to talk generally of contractual expectations failing to materialise; for such failures can occur even when there has been no breach of promise. Moreover, the distinction between breach and nonperformance can sometimes be relevant in relation to the law of actions (contractual remedies).
