Unacceptable Acceptance?
| Published date | 01 January 1979 |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01514.x |
| Author | J. M. Thomson |
| Date | 01 January 1979 |
Jan. 19791
NOTES
OF
CASES
91
formation becoming known to his client. Of course this is an issue
of
common sense and humanity and it does present doctors with
the most difficult moral problems. But does that mean that in law
a
person should be denied information about himself from his own
medical adviser when he expressly requests it?
GERALD DWORKIN.
UNACCEPTABLE ACCEPTANCE?
IN
a
recent article in this
Review1
the present author argued that
in
the law of contracts generally
a
repudiatory breach operates
automatically to bring
a
contract to an end unless the disadvantaged
party chooses to waive the breach and afflrm the contract: there is
therefore no need for him to prove that he
“
accepted
”
the breach
as
terminating the contract. However, in
Thomas
Marshall
(Exports)
Ltd.
v.
Guinle,l
Megarry
V.-C.
strongly rejected the argument that
contracts are automatically determined by repudiatory breaches
and reasserted that
“
acceptance
”
of
a
repudiatory breach was
necessary to terminate a contract of employment.
The plaintiff sought an injunction to restrain an employee from
acting in breach of express terms in his contract
of
employment
whereby he had undertaken not to solicit the plaintiff‘s customers
or suppliers on his own account or misuse his employer’s confiden-
tial information. The employee argued that as he had unilaterally
repudiated the contract, it had automatically come to an end in
spite of the fact that the employer had wanted to continue with it:
accordingly, since the contract had ceased to exist, he was no longer
bound by these contractual obligations.
Not surprisingly, perhaps, Megarry
V.4.
was unimpressed by
these unmeritorious contentions. After reviewing the cases on
“
automatic
”
termination of contracts of employment he concluded
as
follows8:
. . .
I
have great difficulty in accepting the view that
contracts of employment are an exception to the general
rule for repudiation, and that they are terminated forthwith
by the repudiation, whether or not the innocent party elects
to accept it as doing
so.”
He then rejected the doctrine
of
automatic determination either
in its wide form,
viz.
that every fundamental breach or breach
of
66
1
“
The Effect of
a
Repudiatory Breach
”
(1978)
41
M.L.R.
137.
Dicta
of
Lord
Denning
M.R.
and Shaw
L.J.
In the recent case of
Photo Producfion
Ld
v.
Securfcor
119781
3
All
E.R.
146
at pages
152
and
155
respectively, provide furthcr support
for the author’s
the&
In that artlcle.
1
[1978]
3 All
E.R.
193. The case also gives valuable guidance on how to Identify
an employer’s confldentlal Information which an employee cannot divulge as a result
of his
implied
duty of fldellty.
Thls
aspect of the decision Is not discussed
in
any
‘detail in this note.
8
Ibid.
p.
202.
To continue reading
Request your trial