contract-law common-law australia
Does intent affect whether or not repudiation or fundamental breach has occurred?
<p>Consider the case of nonpayment under a very simple contract, where the only promise made is that <code>Person A</code> will perform and deliver some specific work, and <code>Business B</code> will pay them a stated amount for it upon completion.  And to provide <code>Person A</code> with an incentive to terminate rather than sue for performance, say they also agreed to provide some small accessories to the main work after receipt of payment.  So <code>Person A</code> prefers to terminate if they get the opportunity to do so.</p>

<p>There's no dispute that the work has been completed and delivered, however <code>Business B</code> has not provided payment despite being invoiced, despite taking possession of the delivered work, and despite the passage of multiple weeks and the delivery of multiple notices that payment is due.  <code>Person A</code> then delivers a notice along the lines of:</p>

<blockquote>
  <p>In relation to <code>Business B's</code> continued nonpayment of the invoice
  delivered on <code>date</code> and the notice delivered on <code>later date</code> regarding
  same, which advised <code>Business B</code> that its nonpayment has adversely
  affected <code>Person A's</code> finances, that payment was now past due, and
  which requested payment in full by close of business on <code>the same day</code>, I must inform you that no such payment has been received. 
  <code>Business B</code> owes an amount of <code>payable amount</code> for work which was
  completed and delivered on <code>date</code> and has no reasonable grounds for
  withholding payment.  This amount is past due and payable
  <strong>immediately</strong>.  </p>
  
  <p>This will be my final demand for payment of completed work, and any
  subsequent nonpayment will be taken as evidence that <code>Business B</code> is
  either unwilling or unable to uphold its obligations.  Failure to
  dispatch payment, in full, before close of business on <code>today</code> shall
  be construed as nonpayment, notwithstanding any excuse which may be
  offered.  For the avoidance of any doubt, with respect to the matter
  of payment time is of the essence.</p>
</blockquote>

<p>Say <code>Business B</code> receives this and promptly replies stating that payment has now been issued.  However, <code>Person A</code> sees no evidence of any payment having actually been made.  This should give rise to <code>Person A's</code> right to terminate the contract due to repudiation and/or fundamental breach.</p>

<p>My question is, do <code>Business B's</code> actual or stated motivations have any bearing on <code>Person A's</code> right to terminate?  For instance, if <code>Business B</code> was just plain lying about having paid, that would certainly have no bearing (except that it may also constitute unconscionable conduct and/or fraud).  </p>

<p>But what if <code>Person A</code> terminates, and it was the case (or <code>Business B</code> claims it was the case) that <code>Business B</code> made an honest mistake issuing payment, and for instance sent payment to the wrong account or accidentally scheduled it to occur on some future date instead of immediately?  Would that have any bearing on their repudiation of the contract or <code>Person A's</code> right to terminate?  </p>

<p>Is there any avenue of defense against termination that becomes accessible to <code>Business B</code> by virtue of having claimed, in word, to have fulfilled their obligations whilst failing in deed to actually have done so?</p>

<p>Does the distinction between whether <code>Business B</code> has been dishonest, legitimately incompetent, or devious (in feigning incompetence) make any difference?</p>

<p>In general, breach of contract is a matter of objective fact and how that interacts with contract law.</p>

<p>From the facts you state, payment has not been made on or before the due date - that is a breach of contract and the intention to pay or even the belief that they have paid is irrelevant. There are some nuances of course; for example, payment by a posted cheque has been made when the cheque is posted, not when (or if) it is received.</p>

<blockquote>
  <p>Is there any avenue of defense against termination that becomes accessible ...</p>
</blockquote>

<p>Always. Termination is tricky and hard to do right - if you screw it up it is <em>you</em> who have repudiated the contract and are now liable for damages. However, <em>intention</em> doesn't enter into it. Assuming that non-payment is a valid ground for termination (which it may not be) then non-payment is non-payment.</p>
