Fundamental terms: usually, only breach of a condition, or a fundamental term constitutes a breach of contract whereas breach of warranties or non-fundamental terms do not give right of action. The breach must be sufficiently serious so as to allow the right of election i.e. to choose to end the contract and sue: the Simona. These are: (a) breach of condition: Re Moore, (b) repudiatory breach: serious and deliberate and must go to root of contract- Decro Wall where deliberate late payments are not sufficiently serious for a deliberate breach. Fundamental breach goes to root but does not need to be intentional- Dundalk shopping centre. Fundamental breach of contract in Ireland (SC): Clayton Love, this case established a rule of law approach to clauses which seek to exclude liability for fundamental breach. It was held that no matter how clear the contract is, if the breach is fundamental in nature, liability cannot be excluded. In the UK, position is contrasted, as long as the contract is drafted in clear enough terms, there is no objection to an exclusion clause for fundamental breach: Photo Productions Limited. Photo Production was cited positively in Western Meats. Interestingly Clayton Love was not mentioned. Considered also in Ireland in ESL Consulting v Verizon, as to what constituted a fundamental breach and whether the position remains that liability cannot be excluded under Irish law. Noted because it is always possible that a service could be suspended under a contract, the service which was actually provided by d was not so radically different from that which the parties had contracted that the breach could be considered fundamental in nature- therefore a narrow reading. Interestingly, ct held whilst it was of the view that Photo Productions represented the correct statement of the law, they were bound by SC in Clayton Love. The right of the innocent party to damages accelerates the obligation of the party who has committed the anticipatory breach because the time for performance of the contract has itself not yet arisen. Hochester v De La Tour: courier due to start work, before he could, d indicated he would not need him. Date on which the obligation commenced had not yet passed, and the courier was entitled to discharge for breach of contract. There is also a positive duty to mitigate losses if you accept the cancellation which you might incur due to the breach. Athlone Rural DC v Campbell: p contracted d to carry out works on a well and there was a dispute while they were doing this. P wanted to complete the works, but d wanted them gone. This was repudiation by d so they could sue for damages. Further, the breach must be deliberate: Nottingham BS, which involved a genuine dispute over payment, was not repudiatory. Woodar Investment: no intention to breach contract and was not repudiatory. Continental Oil v Moynihan: request to be released from a contract does not amount to repudiation. Leeson v North British Oil: breach related to the supply of paraffin where d contracted to deliver same at a future date and due to a strike was unable to do so. P sued as turned away orders from other suppliers. P could sue once on notice that the contract would be breached. Dundalk Shopping Centre: it was noted that the seriousness and likelihood of recurrence would be examined i.e. .here there was leakage onto premises- p could walk away from the contract given the gravity of the breach. Breach of condition: Union Eagle v Golden Achievement, where time was of the essence; and no prejudice need be caused. Consequences of breach is that the innocent party may: (i) choose to discharge the contract (prospective effect); (ii) affirm the contract or (iii) may lose the right to treat the contract as discharged where there is delay.