Performance
DISCHARGE OF A CONTRACT: means to end a contractual relationship
or ceasing (come to an end) the rights or obligations.
. A person can become free from their contractual relationship by
performing the task or (whatever so ever was asked for in the contract)
When discharging from a contract by performance
Two things need to be considered:
1. Whether it was an entire contract
If this one, then all obligations must be performed.
2. Or was it a division of a contract
If this one, then completion of one division was performance.
The entire or strict performance rule
Cutter v Powell
A vessel sailing mate died when the ship was nine days short of Liverpool, his
wife’s claim to recover the proportion of his agreed wage failed, as the
whole task wasn’t completed.
Exceptions to the entire or strict performance rule
SUBSTANTIAL PERFORMANCE
If the entire obligation has been performed except for the minor details, the
contract is enforceable.
Hoenig v Isaacs 1952
The contract fee was 750 pounds, and the cost of remedying was only 55
pounds so the payment should be made subject to the cost of the minor
defects.
Bolton v Mahadeva
The contract fee was 560 pounds and the costs to rectify was 174 pounds,
the contract wasn’t substantially performed.
Part performance
Sumpter v Hedges 1898
There was a contract to build two houses and stables for 565 pounds and the
contract was abandoned after the work was done to 333 pounds.
It was a personal choice the claimant couldn’t recover his money as partial
performance wasn’t accepted.
Divisible contracts
A contract was divided into parts, so that the claimant can be paid for each
part.
Ritchie v Atkinson
The claimant agreed to carry a specified quantity and only completed part of
the agreed contract; defendants should pay for half of the work done.
Prevention of performance
The claimant can claim for work done on a quantum meruit (amount
merited)
Planche v Colburn
A writer was allowed payment of work when the publisher had abandoned
the series.
Tender of performance (gentleness, kindness)
If one party has completed their part of the contract but the other has not,
when they should have done. The completion party can be discharged from
a contract.
Time of performance
Equity (fair, just, impartial) considers time is not of the essence in a contract.
But it can be in the following circumstances:
1. It's stipulated in a contract
2. Contract makes it imperative that time should be considered e.g.,
perishable goods contract.
3. one party has given reasonable notice.
Rickards v Oppenheim
The defendants gave final notice that if a car was not delivered in a specified
time, they would cancel the order.
Vicarious performance (delegated performance)
It is when the debtor assigned their liability to another but is not relieved
from their obligation to ensure the due performance.
Robinson and Sharpe v Drummond
B agreed to build a carriage and to hire it to A for five years. B was to keep
the carriage in repair. Two years later, B retired and assigned the business to
C.
It was held that the contract between A and B was personal, and A could
reject the performance offer by C.
