Terminating partnerships by "Accepted Repudiation": revisiting Lord Millett's dicta

Graw, Stephen (2021) Terminating partnerships by "Accepted Repudiation": revisiting Lord Millett's dicta. The Journal of Business Law, 2021 (1). pp. 1-29.

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Abstract

As a general rule, if one party commits a repudiatory breach of contract, the other party can then terminate it. Consequently, if one partner commits a repudiatory breach of the partnership agreement, it might be expected that the partnership could be terminated under general law principles. That, however, is not necessarily what happens — and the approaches that the UK and the Australian courts have taken differ considerably.

The UK courts have generally followed the approach that Lord Millett took in Hurst v Bryk [2002] 1 AC 185, arguing that the doctrine of accepted repudiation cannot apply to partnership agreements.

Although his reasoning was clearly obiter, the remainder of the court did not disagree and it was subsequently expressly endorsed in other cases, including, most notably, Mullins v Laughton [2003] Ch 250 and Golstein v Bishop [2014] Ch 455.

In Australia, the courts have taken the opposite view, arguing that partnerships can be dissolved by acceptance of repudiatory breach — though none of the cases to date have been finally decided on that basis.

This paper considers the differences between the two approaches and asks the question: in the end result, does it really matter?

Item ID: 67127
Item Type: Article (Research - C1)
ISSN: 0021-9460
Keywords: Comparative Law; Contracts; Partnership agreements; Repudiation; Fiduciaries
Copyright Information: Copyright to Thomson Reuters and Stephen Graw (contributor)
Date Deposited: 24 Jun 2021 00:03
FoR Codes: 48 LAW AND LEGAL STUDIES > 4801 Commercial law > 480103 Corporations and associations law @ 40%
48 LAW AND LEGAL STUDIES > 4803 International and comparative law > 480302 Comparative law @ 20%
48 LAW AND LEGAL STUDIES > 4806 Private law and civil obligations > 480601 Contract law @ 40%
SEO Codes: 23 LAW, POLITICS AND COMMUNITY SERVICES > 2399 Other law, politics and community services > 239999 Other law, politics and community services not elsewhere classified @ 100%
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