This thesis provides a functional, and justifiable application of the theory of the efficient breach of
contract within the commercial context. Limiting the theory’s application in this way is the primary
original contribution. This is because the theory of efficient breach has not been explicitly applied
solely to the commercial setting previously. This is legitimate because the underlying intention
behind commercial contracting is profit generation. As such, maximising the wealth which flows
from commercial contracts will be the focus of the parties involved. An additional original
contribution is that this thesis represents the first major discussion of efficient breach which applies
the theory to English law.
This thesis also makes additional contributions. A definition of “commercial” in a contract law
context is established to frame the discussion that is to follow. It is then outlined that the fundamental
structure of English contract law will remain the same whether a dispute concerns a commercial, or
a non-commercial contract. However, there is a difference in the approach of the court where rights
are pursued for commercial, profit driven reasons in contrast with rights that are of a personal nature.
Next, it is set out that in English law, promise is not the basis of contract. As such, the efficient breach
of commercial contracts cannot be discounted based on issues of morality which are linked to
promise breaking. Numerous other criticisms which have been directed at efficient breach are also
discounted.
Ultimately, a legitimate formulation of the efficient breach of commercial contracts is outlined. This
iteration is permissive, rather than mandatory. It provides efficient optionality, meaning that where
a party has the opportunity to breach efficiently, it will not necessarily take place. However, should
a party choose to breach, they will be justified. This is a departure from more prescriptive approaches.
