2011年ACCA考试F4模拟试题（9）

　　8 Anticipatory breach occurs where， prior to the date on which performance is due， it becomes apparent that one of the parties will not perform a substantial part of their obligations under the contract or will commit a fundamental breach of contract. The Convention distinguishes between those cases in which the other party may suspend his own performance of the contract but the contract remains in existence awaiting future events and those cases in which he may declare the contract avoided.

　　Thus as regards the first situation Article 71 provides that a party may suspend performance of his obligations if， after the conclusion of the contract but before it is due to be performed， it becomes apparent that the other party will not perform a substantial part of his obligations as a result of：

　　(a) a serious deficiency in his ability to perform or in his creditworthiness; or

　　(b) his conduct in preparing to perform or in performing the contract.

　　If the circumstances only become apparent after the seller has despatched the goods they may prevent them from being handed over to the buyer， even if the buyer holds a document， such as a Bill of Lading， which entitles the buyer to collect the goods. The party suspending the performance of the contract must immediately give notice of the suspension to the other party and must if that part gives adequate assurance of their future performance then the contract must continue. (Article 71)

　　Alternatively， under Article 72， if prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract， the other party may declare the contract avoided. For a breach of contract to be fundamental， it must result in such detriment to the other party as substantially to deprive him of what they were entitled to expect under the contract， unless the result was neither foreseen by the party in breach nor foreseeable by a reasonable person of the same kind in the same circumstances.

　　If time allows， the party intending to avoid the contract must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance. However， that requirement does not apply where the other party has expressly stated that that they will not perform their obligations under the contract.

　　Under the facts of the problem scenario it is apparent that Bo has performed an anticipatory breach of his contract with Arti. Arti can suspend performance of the contract and see if Bo changes his mind. Even if he does change his mind， Bo will not be able to claim the acid in spite of holding the Bill of Lading. However， as a result of Bo‘s express repudiation of the contract Arti is entitled to avoid the contract immediately if he chooses and sue Bo for damages.

　　9 This question requires an analysis of the doctrine of corporate opportunity and the rules relating to directors‘ duties. Section 178 of the Companies Act (CA) 2006 places directors’ duties on a statutory basis， and although s.170 provides that the new statement of duties replaces the old common law rules and equitable principles， it nonetheless expressly provides that the duties now stated in the Act are to be interpreted and applied in the same way as those rules and principles were. Section 178 specifically preserves the existing civil consequences of breach of any of the general duties， so the remedies for breach of the newly stated general duties will be exactly the same as those that were available following a breach of the equitable principles and common law rules that the general duties replace. Section 178(2) specifically provides that the directors‘ duties are enforceable in the same way as any other fiduciary duty owed to a company by its directors and remedies available may include：

　　(i) damages or compensation where the company has suffered loss;

　　(ii) restoration of the company‘s property;

　　(iii) an account of profits made by the director; and

　　(iv) rescission of a contract where the director failed to disclose an interest.