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the CROCS of the matter

5 November 2012

In a recent decision, the Court of Appeal held that a ‘derogatory’ sequence composed by the claimant agent about their ‘battle to get service’ from their principal, CROCS Europe, did not amount to a repudiatory breach entitling CROCS to treat the agency relationship as terminated.

The court held that although the agent was in breach of their duties under the contract, the claimant’s conduct was not sufficiently serious to be a repudiatory breach entitling CROCS to treat the contract as terminated.

No doubt many agents will be relieved with the decision as the alternative places a heavy burden on agents to monitor the actions and online posts of its employees. However, agents should still exercise some caution as this case was ultimately decided on its facts. The Court of Appeal would not reconsider the facts found by the 1st instance judge to determine whether the breach was sufficiently serious to be a repudiatory breach but did note that it was ‘quite close to the borderline’.

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