Common Law Termination of Contract Australia

Common Law Termination of Contract Australia: What You Need to Know

In Australia, the termination of a contract can occur in many ways. One of the most common methods of ending a contract is through the common law termination process. This type of termination is based on the principles of contract law that have been established through court decisions over the years.

What is Common Law Termination?

Common law termination refers to the process of ending a contract based on the terms of the contract itself or through the application of contract law principles. Unlike statutory termination, which is governed by specific laws and regulations, common law termination relies on the established legal principles of contract law.

When Can Common Law Termination be Used?

Common law termination can be used in a variety of situations. For example, if one party to a contract fails to perform their obligations under the contract, the other party may be entitled to terminate the contract. Similarly, if a contract is based on a mistake or misrepresentation, the affected party may be able to terminate the agreement through common law principles.

What are the Requirements for Common Law Termination?

To terminate a contract through common law principles, certain requirements must be met. These requirements vary depending on the specific circumstances of the case, but generally, the following conditions must be present:

1. Breach of Contract – The party seeking to terminate the contract must be able to prove that the other party has breached the terms of the agreement.

2. Notice – The party seeking to terminate must give the other party notice of their intention to terminate the contract.

3. Reasonable Time – The party seeking to terminate must give the other party a reasonable amount of time to rectify the breach before terminating the contract.

4. Mitigation – The party seeking to terminate must take reasonable steps to mitigate their losses resulting from the breach.

5. Good Faith – The party seeking to terminate must act in good faith and not use the termination as a pretext for avoiding their obligations under the contract.

What are the Effects of Common Law Termination?

If a contract is terminated through common law principles, the parties are generally no longer bound by the terms of the agreement. The party that breached the contract may be liable for damages resulting from the breach, while the party terminating the contract may be entitled to compensation for any losses suffered as a result of the breach.


Common law termination is a powerful tool that can be used to end a contract when the other party fails to meet their obligations. If you are considering terminating a contract, it is important to seek legal advice to ensure that you fully understand your rights and responsibilities under the law. With the right approach, you can successfully terminate a contract and protect your interests.