The elective and automatic theories of termination at common law: resolving the conundrum?

David Cabrelli, Rebecca Zahn

Research output: Contribution to journalArticle

1 Citation (Scopus)

Abstract

Under general contractual principles, if one party commits a repudiatory breach of contract, the other party is entitled to either terminate or affirm the contract.1 However, there has been a long-standing debate as to whether the same elective principles apply in relation to the employment contract or whether the law ought to prefer a theory based on automatic termination which posits that one party’s unilateral repudiatory breach operates automatically to bring the contract of employment to an end. Different approaches have been tried and tested in England and Scotland which have resulted in the common law being in an unsatisfactory state as it currently stands. The Supreme Court has the opportunity to bring clarity to this area of the law in the upcoming case of Geys v Société Générale, London Branch which was decided by the Court of Appeal on 30 March 2011.2 Leave to appeal to the Supreme Court was granted on 1 November 2011.
LanguageEnglish
Pages346-357
Number of pages12
JournalIndustrial Law Journal
Volume41
Issue number3
DOIs
Publication statusPublished - Sep 2012

Fingerprint

common law
Supreme Court
appeal
employment contract
Law

Keywords

  • contract termination
  • contract of employment
  • automatic termination
  • elective termination

Cite this

@article{e69fa61cfb0b4c2bb7baf7a5f6c712cb,
title = "The elective and automatic theories of termination at common law: resolving the conundrum?",
abstract = "Under general contractual principles, if one party commits a repudiatory breach of contract, the other party is entitled to either terminate or affirm the contract.1 However, there has been a long-standing debate as to whether the same elective principles apply in relation to the employment contract or whether the law ought to prefer a theory based on automatic termination which posits that one party’s unilateral repudiatory breach operates automatically to bring the contract of employment to an end. Different approaches have been tried and tested in England and Scotland which have resulted in the common law being in an unsatisfactory state as it currently stands. The Supreme Court has the opportunity to bring clarity to this area of the law in the upcoming case of Geys v Soci{\'e}t{\'e} G{\'e}n{\'e}rale, London Branch which was decided by the Court of Appeal on 30 March 2011.2 Leave to appeal to the Supreme Court was granted on 1 November 2011.",
keywords = "contract termination, contract of employment, automatic termination, elective termination",
author = "David Cabrelli and Rebecca Zahn",
year = "2012",
month = "9",
doi = "10.1093/indlaw/dws024",
language = "English",
volume = "41",
pages = "346--357",
journal = "Industrial Law Journal",
issn = "0305-9332",
number = "3",

}

The elective and automatic theories of termination at common law : resolving the conundrum? / Cabrelli, David; Zahn, Rebecca.

In: Industrial Law Journal, Vol. 41, No. 3, 09.2012, p. 346-357.

Research output: Contribution to journalArticle

TY - JOUR

T1 - The elective and automatic theories of termination at common law

T2 - Industrial Law Journal

AU - Cabrelli, David

AU - Zahn, Rebecca

PY - 2012/9

Y1 - 2012/9

N2 - Under general contractual principles, if one party commits a repudiatory breach of contract, the other party is entitled to either terminate or affirm the contract.1 However, there has been a long-standing debate as to whether the same elective principles apply in relation to the employment contract or whether the law ought to prefer a theory based on automatic termination which posits that one party’s unilateral repudiatory breach operates automatically to bring the contract of employment to an end. Different approaches have been tried and tested in England and Scotland which have resulted in the common law being in an unsatisfactory state as it currently stands. The Supreme Court has the opportunity to bring clarity to this area of the law in the upcoming case of Geys v Société Générale, London Branch which was decided by the Court of Appeal on 30 March 2011.2 Leave to appeal to the Supreme Court was granted on 1 November 2011.

AB - Under general contractual principles, if one party commits a repudiatory breach of contract, the other party is entitled to either terminate or affirm the contract.1 However, there has been a long-standing debate as to whether the same elective principles apply in relation to the employment contract or whether the law ought to prefer a theory based on automatic termination which posits that one party’s unilateral repudiatory breach operates automatically to bring the contract of employment to an end. Different approaches have been tried and tested in England and Scotland which have resulted in the common law being in an unsatisfactory state as it currently stands. The Supreme Court has the opportunity to bring clarity to this area of the law in the upcoming case of Geys v Société Générale, London Branch which was decided by the Court of Appeal on 30 March 2011.2 Leave to appeal to the Supreme Court was granted on 1 November 2011.

KW - contract termination

KW - contract of employment

KW - automatic termination

KW - elective termination

U2 - 10.1093/indlaw/dws024

DO - 10.1093/indlaw/dws024

M3 - Article

VL - 41

SP - 346

EP - 357

JO - Industrial Law Journal

JF - Industrial Law Journal

SN - 0305-9332

IS - 3

ER -