Professor Treitel (1995) has defined a breach of contract in the following terms: ‘a breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, performs defectively or incapacitates himself from performing’. It should be noted that in all cases the failure to provide the promised performance must be ‘without lawful excuse’. Thus where the contract has been frustrated there is no liability for breach of contract because both parties have been provided with a ‘lawful excuse’ for their non-performance. Similarly, where one party has breached the contract and the breach has given to the other party the right to terminate performance of the contract, that party is not in breach of contract in refusing to continue with performance because he is given a ‘lawful excuse’ for his non-performance.
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