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This article explains how to analyse the two routes without assuming that a contractual termination clause automatically gives, preserves or excludes a common-law remedy. It is general information for UK construction contracts, not advice on a live termination.
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The two possible routes to termination
Building’s 26 April 2024 instalment, Essential law: Termination, part four, describes the issue as whether a party can terminate under common law and under the contract simultaneously. Its starting point is that an employer may have two potentially distinct routes.
Accepting a repudiatory breach at common law
Repudiation is not simply any breach or disappointing performance. The indexed discussion describes the threshold as a breach sufficiently serious to deprive the innocent party of substantially the whole benefit of the contract. That is a high bar. The analysis must focus on the breach and its effect on the bargain, not merely on whether a contractual termination clause could also be used.
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If the facts meet that threshold, the innocent party may consider accepting the repudiation and bringing the contract to an end under common law. The decision must be based on the evidence available at the time: identify the obligation, the conduct said to amount to repudiation and why that conduct goes to the substance of the bargain.
Exercising an express contractual right
A contract may provide a separate right to terminate for specified events. The trigger might be described by reference to a breach, insolvency, failure to proceed, non-payment, suspension or another event, but the relevant question is always what the signed contract actually says. The clause may prescribe a notice form, a period for remedy, a sequence of notices, a decision-maker, or particular consequences after termination.
A contractual trigger can be narrower, broader or simply different from the common-law test. A party must therefore establish the clause’s wording, satisfy its conditions and follow its procedure. The fact that conduct appears serious enough to be repudiatory does not remove the need to comply with a contractual notice mechanism when the party is relying on that mechanism.
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What does “simultaneously” mean?
The word can describe several different strategies, and they should not be treated as interchangeable:
- Cumulative reliance: the party says that the facts justify both acceptance of repudiation and exercise of a contractual termination power.
- Alternative reliance: the party gives notice under the contract while stating that, if the contractual route is unavailable or ineffective, the same conduct is accepted as repudiatory at common law.
- Sequential reliance: the party first uses one route and later considers another in response to further facts or a dispute about the first step.
The available material does not establish a universal answer that a party can always invoke both routes in one notice. Nor does it establish that doing so is always ineffective. The result may turn on whether the contract makes a particular right conditional, whether the alleged breach satisfies the common-law threshold, whether the notice clearly communicates the decision being made, and whether the two positions are legally or factually inconsistent.
Before sending a termination notice, decide which of these meanings is intended. “Terminated under the contract and at common law” may not be enough if the document does not identify the contractual clause, the factual basis, the effective date and the intended legal effect.
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Why the exact clause and context matter
The UK Supreme Court’s decision in Providence Building Services Limited v Hexagon Housing Association Limited, press summary dated 15 January 2026, illustrates the importance of close textual analysis. The case concerned a termination clause in a JCT Design and Build Contract 2016. The Court’s summary reports that the clause applied only where the contractor had an accrued right to terminate under another clause. That conclusion followed the natural meaning of the words read in their contractual context.
The summary also notes that the specific wording remained unchanged in the 2024 edition. This is a reminder to check the edition and amendments of the contract actually signed, rather than relying on a familiar clause number or a later standard form. The decision is clause-specific: it does not answer every question about simultaneous reliance on a contractual right and common-law repudiation.
Comparing common-law and contractual termination
| Issue | Common-law route | Contractual route |
|---|---|---|
| Source of the right | General common law, if the other party’s conduct amounts to repudiatory breach and that repudiation is accepted. | An express term in the signed contract, as interpreted in its wording and context. |
| Trigger or threshold | A serious breach that deprives the innocent party of substantially the whole contractual benefit; the threshold is high. | The event or breach specified by the clause. It may not be identical to the common-law test. |
| Notice and procedure | Apply the rules governing acceptance and communication, while checking whether the contract affects the parties’ agreed process. | Follow every stated requirement, such as notice wording, delivery method, cure period, sequencing and effective date. |
| Consequences | Do not assume the same consequences as under a clause; the legal effect must be analysed from the facts and applicable law. | Read the clause and related provisions for the stated consequences, payment treatment and other post-termination provisions. |
| Principal validity risk | If the conduct falls short of repudiation, the purported acceptance may be challenged. | If the trigger or procedure is not satisfied, the contractual notice may be challenged as ineffective. |
A practical analysis before sending notice
- Collect the controlling documents. Use the executed contract, schedules, amendments, supplemental conditions, the correct JCT or other form edition, and any incorporated specification. Record which document contains each proposed termination right.
- Map the alleged breach or event. Prepare a chronology with dates, notices, instructions, missed obligations, extensions, responses and mitigation. Separate proven facts from allegations and forecasts.
- Test the common-law threshold. Ask what contractual benefit has allegedly been lost and why the breach is said to deprive the innocent party of substantially the whole bargain. A single serious consequence may matter, but seriousness must be demonstrated from the contract and circumstances rather than assumed from a label.
- Parse each contractual clause. Identify the exact trigger, any requirement that another right must already have accrued, notice recipient, delivery method, cure or warning period, timing, and any condition precedent. The Providence decision shows why a clause that appears self-contained may depend on another provision.
- Check for interaction between provisions. Read definitions, conditions precedent, suspension clauses, payment provisions and termination consequences together. Do not assume that a right in one clause can be exercised before an entitlement in another clause has arisen.
- Choose the notice strategy. Decide whether the notice relies on the contractual power, accepts repudiation, or sets out alternative bases. If alternatives are intended, say so expressly and explain which event is said to take effect on which date.
- Verify service and timing. Use the contract’s notice address, permitted delivery methods and deemed-receipt rules. Calculate cure and effective dates from the contractual wording, including any non-working-day rule.
- Obtain advice before committing the position. A solicitor who can review the executed terms and evidence can assess whether the repudiatory threshold is met, whether the clause has been satisfied and whether the proposed wording creates an avoidable inconsistency.
How to frame a termination notice
A notice should allow the recipient to understand the decision without reconstructing it from correspondence. Consider including:
- the parties, project and contract date;
- the clause relied on, quoted accurately and identified by edition where relevant;
- the factual events said to trigger the clause, with dates and supporting documents;
- confirmation that each notice, cure or sequencing requirement has been met;
- the effective date and time, calculated under the contract;
- if appropriate, a clearly labelled alternative statement that the same conduct is accepted as repudiatory at common law; and
- instructions for securing the site, records, materials, design information and other project information, but only to the extent consistent with the contract and applicable law.
Avoid relying on a bare assertion that the other party is in “repudiatory breach”. Explain the conduct and its effect on the bargain. Equally, avoid listing every conceivable clause without identifying which one is actually being exercised; an over-inclusive notice can make the intended basis harder to determine.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.Common mistakes that create disputes
Assuming any serious breach is repudiatory
The common-law test is demanding. A breach can be important, expensive or repeated without necessarily depriving the innocent party of substantially the whole contractual benefit. The evidence must support the legal threshold, not just the commercial frustration.
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Treating a contractual right as automatic
A termination clause is not self-executing merely because its trigger appears to have occurred. Missing a warning, cure period, service requirement or condition linked to another clause can undermine the contractual route.
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Using the wrong contract edition
Standard forms are amended and reissued. Confirm the edition and amendments in the signed documents. The Supreme Court’s 15 January 2026 press summary records that wording relevant to its JCT case remained unchanged in the 2024 edition, but that does not make every other clause or project amendment identical.
Sending an ambiguous notice
State whether the notice is contractual, common-law, or alternative. Identify the operative decision and date. If the document leaves the recipient uncertain whether the contract has been accepted, terminated under a clause, or both, the parties may spend the dispute arguing about the notice rather than the underlying breach.
Continuing as if no termination occurred
After notice, project communications should be coordinated with the chosen legal position. Instructions, access arrangements, payment applications and possession of materials can affect the factual record. Keep a dated file of decisions and obtain advice before taking steps that appear inconsistent with the notice.
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What can be concluded safely?
The defensible answer to “Can I terminate a construction contract under common law and the contract?” is: potentially, but only after analysing each route separately and the interaction between them. Common law requires the high repudiatory-breach threshold. A contractual termination depends on the wording, trigger and procedure of the particular agreement. A notice may be framed on alternative bases in an appropriate case, but the law does not supply a one-size-fits-all permission to invoke both routes, and the Providence decision should be used only for its narrow lesson that wording and context control.
For a live project, preserve the evidence, identify the exact clause and contract edition, calculate every procedural deadline, and have the proposed notice reviewed before it is served. The cost of an unclear or unsupported termination position can be substantial even when the underlying project grievance is genuine.
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