Part III Particular Contractual Provisions, 23 Modification of Remedies: Express Termination, Retention of Title, and No Set-Off Clauses

Subject(s):

Breach of contract — Interpretation of contract — Performance of contract — Remedies for breach of contract — Termination/unwinding of contract

This chapter considers express termination clauses in detail, and briefly considers retention of title clauses and clauses restricting set-off. As a matter of general principle, parties are free to incorporate their own express regimes for termination of the contract; such clauses are common in contracts of any significant duration. The chapter presents an overview of the process and examines the issues which might arise from express termination clauses. With the retention of title clauses (or Romalpa clauses), the chapter focuses on issues of construction and characterization to address the numerous problems of such clauses. Finally, the chapter considers the law of set-off, which provides the regime for determining whether a cross-claim may be advanced in the same proceedings to reduce, extinguish, or even exceed the claimant's prima facie claim.