A repudiatory breach does not end a construction contract automatically. The party entitled to react must choose between accepting the breach and bringing the contract to an end, or affirming the contract and keeping it alive. Once that choice has been communicated, Sara Cunningham’s 26 June 2023 article in Building states that it cannot be withdrawn.
Affirmation can be express, such as a clear statement that the contract will continue, or inferred from conduct such as continuing performance or requiring the defaulting party to perform. The decision depends on the contract, the facts known at the time and the governing law.
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What “termination” means in this situation
This article concerns termination following a repudiatory breach: a breach treated as giving the other contracting party an election. In practical construction terms, the employer, contractor or subcontractor may have to decide whether to accept the default as bringing the contractual relationship to an end or to continue relying on the contract.
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The word “termination” is often used loosely. A contract may contain an express termination clause, a separate right to suspend, or a right arising from the general law. Those routes are not interchangeable. The account by Sara Cunningham in Building on 26 June 2023 addresses the election that follows a repudiatory breach. It does not establish which law governs your project, what your contract’s notice clause requires, or whether a particular breach meets the legal threshold.
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That qualification matters on construction projects. Standard forms, amendments, bespoke employer requirements, payment provisions and dispute clauses can alter the analysis. Before acting, identify the contract and governing-law provisions that apply to the disputed event.
The central rule: a repudiatory breach is not self-executing
Sara Cunningham’s 26 June 2023 article in Building explains that termination after repudiatory breach is not automatic. Even if one party has committed a breach serious enough to create an election, the other party does not lose control of the decision by simply waiting a moment. It must decide what to do and communicate that decision in a way the law recognises.
There are two broad options:
| Election | What it means in principle | Conduct that may be relevant |
|---|---|---|
| Accept the repudiation | Treat the contract as ended on the basis of the repudiatory breach, subject to the governing law and the contract’s consequences. | A clear communication that the breach is accepted and the contract is terminated. |
| Affirm the contract | Choose to keep the contract in place and continue to treat both parties as bound by it. | An express statement of continuation, or conduct such as continuing performance or requiring the defaulting party to perform. |
The table describes the choice at a high level, not a complete statement of remedies. Sara Cunningham’s 26 June 2023 article in Building does not substantiate a universal notice period, a particular form of notice or a jurisdiction-specific procedure.
What affirmation is
Affirmation is communication of an intention to continue with the contract after the other party’s repudiatory breach. It is not limited to a sentence using the word “affirm”. Sara Cunningham’s 26 June 2023 article in Building says it may be express or inferred from conduct.
Express affirmation
An express affirmation is a direct, informed statement that the contract remains in force. For example, an employer might write to a contractor that, despite the alleged breach, it requires the works to proceed under the existing agreement. A contractor might tell an employer that it will continue to perform while reserving the position on the disputed event. Whether the wording has the intended legal effect depends on the whole communication, the contract and the governing law; labels alone do not decide the issue.
Affirmation inferred from conduct
Conduct can communicate the same intention without a formal declaration. Cunningham’s account gives continued performance by the innocent party and requiring the defaulting party to continue its obligations as possible examples. On a live project, that could include directing the allegedly defaulting contractor to mobilise, certifying work in the ordinary way, supplying information needed for the next work stage, or insisting that contractual milestones continue. None of those acts is automatically an affirmation in every dispute. The question is what the conduct objectively communicates in the circumstances and what the party knew when it acted.
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The knowledge requirement
Sara Cunningham’s 26 June 2023 article in Building adds an important safeguard: a party cannot affirm after repudiatory breach unless it fully understands the facts leading to the breach and knows that it can choose between accepting termination and affirming the contract.
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“Fully understands” should not be treated as a shortcut to certainty about every disputed fact. It means the decision-maker needs a proper grasp of the facts said to constitute the repudiatory breach and of the available choice. What is sufficient knowledge is fact-sensitive and may be determined under the governing law. Keep a dated record of what was known, by whom and when.
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How to handle the decision on a construction project
The following process is a practical risk-control sequence, not a substitute for advice on the project’s governing law.
- Locate the contractual framework. Read the execution copy, amendments, schedules and incorporated documents. Identify termination, suspension, notice, cure, payment and dispute provisions, together with the governing-law and jurisdiction clauses.
- Define the alleged breach. Record the obligation said to have been broken, the relevant dates, the acts or omissions, and the evidence. Separate established facts from assumptions and allegations.
- Test the available election. Ask whether the event could give rise to a right to accept repudiation under the applicable contract and law. Do not describe the contract as terminated merely because a serious breach is alleged.
- Check the decision-maker’s knowledge. Confirm that the people deciding have the material facts and understand that the choices are acceptance or continuation. Escalate unknown technical, programme or payment facts before sending an election communication.
- Choose a consistent position. If accepting, prepare a clear communication that identifies the breach and the decision. If affirming, ensure instructions and correspondence are consistent with keeping the contract alive. Avoid sending messages that simultaneously demand future performance and declare the contract already ended unless specialist advice supports that approach.
- Communicate deliberately. Use the notice method and recipients required by the contract. Preserve the exact message, attachments, delivery evidence and time sent. Sara Cunningham’s 26 June 2023 article in Building says that once the choice is communicated, it cannot be undone.
- Control subsequent conduct. Brief the project manager, quantity surveyor, contract administrator and site team. Their directions, certificates, access arrangements and payment decisions may later be examined as evidence of the position taken.
- Preserve the record. Keep contemporaneous site records, programmes, meeting minutes, photographs, instructions, delivery logs and internal approvals. Note when new information arrived and whether it changed the factual picture.
The final step does not create a new legal test. It reduces the risk that later conduct will be presented as inconsistent with the election that was communicated.
Construction examples: how conduct can create difficulty
Continuing site operations after an alleged contractor default
An employer alleges that a contractor has repudiated the building contract by abandoning the works. The employer’s team keeps issuing ordinary instructions, grants access, assesses applications and demands that the contractor return to site, while internal correspondence says the contract is over. Those actions may be argued to communicate continuation. The outcome cannot be predicted without the contract, the governing law, the precise communications and the facts known at each point.
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Requiring a subcontractor to perform while reserving a decision
A main contractor may need urgent work to protect the site while investigating whether a subcontractor’s failure is repudiatory. A carefully drafted instruction can distinguish operational steps from the ultimate election, but the legal effect is jurisdiction- and fact-dependent. The project team should not assume that adding the words “without prejudice” or “under reservation” automatically prevents conduct from being treated as affirmation.
Accepting a breach, then trying to reverse course
If a party sends a communication accepting repudiation and later decides that continued performance would be commercially preferable, Sara Cunningham’s 26 June 2023 article in Building presents a serious problem: the communicated election cannot be undone. Any new arrangement would need to be analysed as a possible fresh agreement or other legal step, not as a simple cancellation of the original choice.
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- Assuming the breach terminated the contract. The right to elect and the election itself are separate events.
- Allowing routine administration to run on autopilot. Instructions, valuations and requests for performance can be relevant evidence of an intention to continue.
- Making a decision without the facts. Sara Cunningham’s 26 June 2023 article in Building links affirmation to understanding the facts leading to the breach and knowing that termination is available.
- Using contradictory communications. A notice accepting termination followed by an unqualified demand for contractual performance creates avoidable uncertainty.
- Ignoring the contract’s notice mechanics. Even where the general-law election is the issue, a contract may prescribe how notices are served and who may receive them.
- Treating a project manager’s action as legally neutral. The effect of conduct is not decided by the person’s private intention alone; the surrounding circumstances and communication matter.
- Importing a rule from another jurisdiction or contract form. Sara Cunningham’s 26 June 2023 article in Building does not identify a governing jurisdiction, and construction forms differ.
Questions to settle before sending a termination or affirmation notice
Use this short internal checklist before a communication leaves the organisation:
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- What event is said to be repudiatory, and what documents prove it?
- Who has authority to make the election?
- What facts did that person know at the time of the decision?
- Do they understand that accepting termination and affirming are alternative choices?
- Does the proposed wording clearly communicate one position?
- Does it comply with contractual notice, service and timing requirements?
- Have site and commercial teams been told what conduct could undermine the chosen position?
- Has specialist advice been obtained for the governing law and project-specific consequences?
What Sara Cunningham’s 26 June 2023 Building article does—and does not—establish
Sara Cunningham’s 26 June 2023 article in Building supports three propositions: termination after repudiatory breach is not automatic; affirmation may be express or inferred from conduct; and affirmation requires, in the article’s formulation, full understanding of the relevant facts and awareness that termination is an available choice. It also states that a communicated choice cannot be undone.
It does not, by itself, answer whether a particular delay, non-payment, abandonment, defective work or refusal to perform is repudiatory. Nor does it specify the remedies available after acceptance, the effect of a termination clause, the required notice period, or the procedure in a particular country. Those questions must be answered from the contract and applicable law.
Practical takeaway for employers, contractors and subcontractors
On a disputed construction breach, pause the assumption that the contract has ended. Establish the facts, identify the legal and contractual framework, confirm that the decision-maker understands the available election, and align every external communication and project action with the position chosen. Because Sara Cunningham’s 26 June 2023 article in Building treats a communicated election as irreversible, obtain jurisdiction-appropriate legal advice before sending a notice that accepts repudiation or conduct that could be read as affirmation.
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