A.6. Discharge Flashcards
Cutter v Powell
Was to be paid as working hand on boat for trip from Jamaica to Liverpool. Died on the way: entitled to nothing. If the contract requires entire performance: one is entitled to nothing if not fully performed.
Re Moore & Co
canned fruits to come in boxes of 30 came in boxes of 24 (although right total amount). Whole consignment rejected.
Boone v Eyre
SUBSTANTIAL PERFORMANCE. A party who has performed with only minor defects can claim price less any amount to correct defects. This will only apply to a breach of warranty: not of condition.
Hoenig v Isaacs
Hire to refubish a falt for 750. minor defect. Was allowed to claim price minus 56 pounds to correct.
Bolton v Mahadeva
unlike hoenig: price was 560: defects 174. Substantial performance found to not have taken place.
Sumpter v Hedges
contracted for building a shed: gave up halfway: and defendant had to finish the work himself. Quantum meruit didn’t apply: there was no choice for the defendant. Other party must accept for part performance: only if they have a real choice.
Planche v Colburn
contracted to write a book: but they cancelled the series - he was able to recover half amount.
Startup v McDonald
had until end of march to deliver oil. Arrived on last day: they refused to accept (it was late). Was allowed damages.
Lombard North Central plc v Butterworth [1987] QB 527.
Time is of the essence when the parties say so. The leased computer where it was stated late payment was a condition and would allow termination. Timely performance was a term and went to the root of the contract: C terminated.
United Scientific Holdings v Burnley BC
Time is of the essence where it can be seen from the nature of the contract - goods that spoil or vary quickly. Land not time of the essence. 99-year lease with the right to review rent every 10. landlord wanted to revise pricing after deadline and was allowed to do so. Time assumed to not be of the essence.
Valilas v Januzaj
Two dentists: one paying 50% of profits to the other to practice in his cabinet. 3 months late: it was a breach of warranty and not condition - could be some CF problems but not go under or anything. Allowed damages but not repudiation.
Charles Rickards v Oppenheimer
Time becomes of the essence after a delay and a notice of time is given.
Davies v Collins
coat given to clean: said every care is exercized. Subbed it and coat lost. This was a breach of contract because the language insinuated there would not be vicarious performance.
Stewart v Reavell’s Garage
liability stays with the original party when there is vicarious performance. Brake work to be done by a sub and this agreed by the other party. Brakes failed: got injured. Contracting party on the hook.
Taylor v Caldwell
Music hall rented for concerts: burned down. Performance became impossible: contract frustrated.
Davis Contractors v Fareham
Davis Contractors agreed with Fareham UDC to build 78 houses over eight months for £92,425. It ended up taking 22 months, because Davis was short of labour and materials. It cost £115,223. Davis submitted the contract was frustrated, void, and therefore they were entitled to quantum meruit for the value of work done. No, it just became more expensive. the frustrating event must render performance radically different and so must not be enforced. Frustation and mistake are similar: with the former happening after C: the other before.
Robinson v Davison
Unavailability of party frustrates the contract. Piano player got ill and couldn’t perform. Frustrated.
Nicholl and Knight v Ashton Edridge
Method of performance becoming impossible frustrates the contract. Shipment of cotton on specific boat. Boat sank: couldn’t perform as described.
Events making performance impossible
- Destruction/unavailability of something essential to performance. 2. death of either party if personal performance needed. 3. unavailability of party (Robinson v Davison): 4. Nicholl and Knight v Ashton Edridge
Fibrosa v Fairbairn
a change in the law after the c making performance illegal frustrates the contract. Machines to be delivered to Poland but by the time they were finished: Poland had been occupied.
Krell v Henry
rented a room to see coronation: which was postponed. Frustrated: there was no other point to rent the room
Herne Bay Steam Co v Hutton
rented a boat to see the coronation naval review. Coronation postponed. Contract upheld because there were other points to renting a boat.
AA v PM
call center hired to help with transition to central call center: but franchisees didn’t want it. Asked for frustation but was denied because: 1. whole purpose of contract not necessarily gone: 2. frustrating event has to be something the parties could not reasonably have foreseen: 3. actions after event are a clue (here the parties waited 5 months after supposed frustration).
Limits of Frustration: 1. Contractual Provision
- If there is a contractual provision against frustrating event: no frustration. A C may make specific provision for the type of event: usually by allocating the risk to one of the parties. A force majeure clause will also impede frustration if it is within scope.
Taskiroglon Co v Noblee
- A contract becoming more onerous doesn’t frustrate. Suez canal was closed: defendant had to ship peanuts: and it became much more expensive: no frustration. Performance was still possible in the timeframe: even though more burdensome.
Gold Group v BDW
- Foreseen and foreseeable events. argued that a fall in building prices had frustrated the contract. Not so: there is only frustration where contract becomes impossible: not just impractical or uneconomical.
Davis Contractors v Fareham
- Foreseen and foreseeable events. Building contract took longer and was more expensive due to labour shortaged - no frustration as it didn’t radically change the C. Where a supervening event was foreseen or could have been: no frustration.
Four Seasons Healthcare v Monaghan
- Foreseen and foreseeable events. abouse of one of the patients foreseeable. Frustration not backdated.
Maritime National Fish v Ocean Trawlers
- Fault of one of the parties: no frustration. they had three licenses and five ships: used the licenses on other ships and claimed frustration. No: they had a choice and chose to use licenses on other ships.
Super Servant Two
- Fault of one of the parties: no frustration. They had two ships and one sank: couldn’t use the other because it was used for another contract. No frustration: they had a choice. Decision inclufenced by the fact that the other C was made after the ship sank: they were trying to use frustration to get out of the least profitable contract.
Fibrosa v Fairbairn
if complete failure of consideration: moneys paid recoverable
The Law Reform (Frustrated Contracts) Act 1943
The Act doesn’t affect whether a contract is frustrated or not: only the consequences of frustration. It doesn’t apply to : 1. C of specific goods which have perished: 2. most charterparties: 3. c for carriage of goods by sea: 4 insurance policies. Rebuttable presumption that the act applies. 1. Obligations to pay money - money paid before frustrating events is due back except for expenses incurred: but only in cases w/ provisions for advance payment. 2. obligations other than to pay money - if before the frustrating event a party obtains a vluable benefit other than money becuase of something done in performance of the C: the party receiving it can be ordered to pay a just sum for it. Is the valuable benefit the end product of the services or the services themselves? Usually the end product.
BP Exploration v Hunt
had a concession: BP came in to extral oil: contract frustrated by seizure. This was considere a valuable benefit to Mr. Hunt. In calculating the award of a just sum for valuable benefit: the courts try to balance out financial consequences to avoid unjust enrichment.
Gamerco SA v ICM
Court is not obligated to go for total retention or equal division but to try to do justice in a situation not envisaged and to mitigate harshness of allowing all loss to lie where it fell. There is still a gap in C that don’t specify any advance payment - all expenses incurred will lie where they fell (except for valuable benefit).
Platform Funding v Bank of Scotland
Valuer evaluates the value fo the wrong plot. Doesn’t matter if negligence or not: he didn’t do what was contracted for at all.
Pillbrow v Pearless
Asked for legal counsel from a sollicitor: they gave him someone else. They didn’t perform at all what was asked: even though the advice was good.
Poussard v Spiers (1876) 1 QBD 410.
opera singr who didn’t show up for performance. Breach.
Modahl v British Athletic Federation
She was suspended on suspicion of drug use. There was a policy governing committee for immediate suspension: no breach: no damages.
Abramova v Oxford Institute of Legal Practice
sued oxford on the basis of CRA required reasonable care: had failed her exams three times. To qualify for a breach: their acts or ommissions had to be so far below level of reasonable care so as to be negligent. No breach.
Frost v Knight
Frost v Knight - anticipatory breach. Engaged and supposed to marry after father’s death. She sued after he broke it off even though father hadn’t died yet. She was allowed to do so.
Hochster v de la Tour
tour guide: cancelled before the trip was supposed to happen. Allowed to sue right away.
Avery v Bowden
C to laod ship: was told no longer needed: but he left ship until the last day instead of suing right away. War broke out and he couldn’t sue any longer as this frustrated the c.
Vaswani v Italian Motors
Repudiation is where one party makes it clear they no longer intend to be bound by the c. Drastic conclusion only to arise in cases of clear refusal in a matter going straight to the root of the contract. Had paid a deposit on a Ferrari. C allowed raising price to cover costs. They asked for 40k with a letter saying if he didn’t pay they would consider the contract repudiated. They didn’t have the right to ask for so much: but he should have paid the rest. They were able to keep the deposit.
Vitol SA v Norelf Ltd.
Choice to affirm or discharge. Notice sent to the other party they would refuse cargo based on it being late. The other party did nothing: and this was considered sufficient acceptance of the repudiation. Once the innocent party has made his choice clear: that choice is final
Hunslow v Twikenham Garden
Became dissatisfied with word: said C allowed them to cancel. They wanted to remove permission for the other to enter the land to finish work. Courts said they weren’t allowed to restrict permission.
White and Carter v McGregor
3-year deal on advs on trash cans. After C: they said they wanted to cancel. Other party performed the entire 3 years and then sued for the entire amount. It was their option to reinstate the contract. It was their right no matter how unreasonable.
Clea Shipping v Bulk Oil
Charter of old ship. Contract repudiated: but they spent 800k renovating ship in order to perform the contract and kept crew at disposal for entire length of contract: then claimed. This was rejected: no legitimate interest for them to continue performance other than claiming damages.
Ministry of Sound v World Online
question was whether other party could continue performance without delivery of CDs. A right to payment was not considered dependent on the performance of services solely because the payment was to b maid in exchange for the services. The payments here were not linked to a specific perormance but on specified dates: and the last payment was due. White and Carter reaffirmed: the restrictions against unwanted performance are narrow in scope and can’t force the innocent party to stop performing if they want to keep going.
Morris v Baron
Formalities of an agreement: 1. Partial discharge - small alterations must be in writing. 2. complete discharge: oral agreement sufficient. 3. Fresh agreement. Oral discharge sufficient for the old agreement: but the new one must be in writing.
Bland v Sparkes
Condition subsequent is when the parties agree at the beginning that if something happens the ocntract is discharged. Here the C said that if he took drugs: the swimmer’s contract was discharged.
Was to be paid as working hand on boat for trip from Jamaica to Liverpool. Died on the way: entitled to nothing. If the contract requires entire performance: one is entitled to nothing if not fully performed.
Cutter v Powell
canned fruits to come in boxes of 30 came in boxes of 24 (although right total amount). Whole consignment rejected.
Re Moore & Co
SUBSTANTIAL PERFORMANCE. A party who has performed with only minor defects can claim price less any amount to correct defects. This will only apply to a breach of warranty: not of condition.
Boone v Eyre
Hire to refubish a falt for 750. minor defect. Was allowed to claim price minus 56 pounds to correct.
Hoenig v Isaacs
unlike hoenig: price was 560: defects 174. Substantial performance found to not have taken place.
Bolton v Mahadeva
contracted for building a shed: gave up halfway: and defendant had to finish the work himself. Quantum meruit didn’t apply: there was no choice for the defendant. Other party must accept for part performance: only if they have a real choice.
Sumpter v Hedges
contracted to write a book: but they cancelled the series - he was able to recover half amount.
Planche v Colburn
had until end of march to deliver oil. Arrived on last day: they refused to accept (it was late). Was allowed damages.
Startup v McDonald
Time is of the essence when the parties say so. The leased computer where it was stated late payment was a condition and would allow termination. Timely performance was a term and went to the root of the contract: C terminated.
Lombard North Central plc v Butterworth [1987] QB 527.
Time is of the essence where it can be seen from the nature of the contract - goods that spoil or vary quickly. Land not time of the essence. 99-year lease with the right to review rent every 10. landlord wanted to revise pricing after deadline and was allowed to do so. Time assumed to not be of the essence.
United Scientific Holdings v Burnley BC
Two dentists: one paying 50% of profits to the other to practice in his cabinet. 3 months late: it was a breach of warranty and not condition - could be some CF problems but not go under or anything. Allowed damages but not repudiation.
Valilas v Januzaj
Time becomes of the essence after a delay and a notice of time is given.
Charles Rickards v Oppenheimer
coat given to clean: said every care is exercized. Subbed it and coat lost. This was a breach of contract because the language insinuated there would not be vicarious performance.
Davies v Collins
liability stays with the original party when there is vicarious performance. Brake work to be done by a sub and this agreed by the other party. Brakes failed: got injured. Contracting party on the hook.
Stewart v Reavell’s Garage
Music hall rented for concerts: burned down. Performance became impossible: contract frustrated.
Taylor v Caldwell
the frustrating event must render performance radically different and so must not be enforced. Frustation and mistake are similar: with the former happening after C: the other before.
Davis Contractors v Fareham
Unavailability of party frustrates the contract. Piano player got ill and couldn’t perform. Frustrated.
Robinson v Davison
Method of performance becoming impossible frustrates the contract. Shipment of cotton on specific boat. Boat sank: couldn’t perform as described.
Nicholl and Knight v Ashton Edridge
- Destruction/unavailability of something essential to performance. 2. death of either party if personal performance needed. 3. unavailability of party (Robinson v Davison): 4. Nicholl and Knight v Ashton Edridge
Events making performance impossible
a change in the law after the c making performance illegal frustrates the contract. Machines to be delivered to Poland but by the time they were finished: Poland had been occupied.
Fibrosa v Fairbairn
rented a room to see coronation: which was postponed. Frustrated: there was no other point to rent the room
Krell v Henry
rented a boat to see the coronation naval review. Coronation postponed. Contract upheld because there were other points to renting a boat.
Herne Bay Steam Co v Hutton
call center hired to help with transition to central call center: but franchisees didn’t want it. Asked for frustation but was denied because: 1. whole purpose of contract not necessarily gone: 2. frustrating event has to be something the parties could not reasonably have foreseen: 3. actions after event are a clue (here the parties waited 5 months after supposed frustration).
AA v PM
- If there is a contractual provision against frustrating event: no frustration. A C may make specific provision for the type of event: usually by allocating the risk to one of the parties. A force majeure clause will also impede frustration if it is within scope.
Limits of Frustration: 1. Contractual Provision
- A contract becoming more onerous doesn’t frustrate. Suez canal was closed: defendant had to ship peanuts: and it became much more expensive: no frustration. Performance was still possible in the timeframe: even though more burdensome.
Taskiroglon Co v Noblee
- Foreseen and foreseeable events. argued that a fall in building prices had frustrated the contract. Not so: there is only frustration where contract becomes impossible: not just impractical or uneconomical.
Gold Group v BDW
- Foreseen and foreseeable events. Building contract took longer and was more expensive due to labour shortaged - no frustration as it didn’t radically change the C. Where a supervening event was foreseen or could have been: no frustration.
Davis Contractors v Fareham
- Foreseen and foreseeable events. abouse of one of the patients foreseeable. Frustration not backdated.
Four Seasons Healthcare v Monaghan
- Fault of one of the parties: no frustration. they had three licenses and five ships: used the licenses on other ships and claimed frustration. No: they had a choice and chose to use licenses on other ships.
Maritime National Fish v Ocean Trawlers
- Fault of one of the parties: no frustration. They had two ships and one sank: couldn’t use the other because it was used for another contract. No frustration: they had a choice. Decision inclufenced by the fact that the other C was made after the ship sank: they were trying to use frustration to get out of the least profitable contract.
Super Servant Two
if complete failure of consideration: moneys paid recoverable
Fibrosa v Fairbairn
The Act doesn’t affect whether a contract is frustrated or not: only the consequences of frustration. It doesn’t apply to : 1. C of specific goods which have perished: 2. most charterparties: 3. c for carriage of goods by sea: 4 insurance policies. Rebuttable presumption that the act applies. 1. Obligations to pay money - money paid before frustrating events is due back except for expenses incurred: but only in cases w/ provisions for advance payment. 2. obligations other than to pay money - if before the frustrating event a party obtains a vluable benefit other than money becuase of something done in performance of the C: the party receiving it can be ordered to pay a just sum for it. Is the valuable benefit the end product of the services or the services themselves? Usually the end product.
The Law Reform (Frustrated Contracts) Act 1943
had a concession: BP came in to extral oil: contract frustrated by seizure. This was considere a valuable benefit to Mr. Hunt. In calculating the award of a just sum for valuable benefit: the courts try to balance out financial consequences to avoid unjust enrichment.
BP Exploration v Hunt
Court is not obligated to go for total retention or equal division but to try to do justice in a situation not envisaged and to mitigate harshness of allowing all loss to lie where it fell. There is still a gap in C that don’t specify any advance payment - all expenses incurred will lie where they fell (except for valuable benefit).
Gamerco SA v ICM
Valuer evaluates the value fo the wrong plot. Doesn’t matter if negligence or not: he didn’t do what was contracted for at all.
Platform Funding v Bank of Scotland
Asked for legal counsel from a sollicitor: they gave him someone else. They didn’t perform at all what was asked: even though the advice was good.
Pillbrow v Pearless
opera singr who didn’t show up for performance. Breach.
Poussard v Spiers (1876) 1 QBD 410.
She was suspended on suspicion of drug use. There was a policy governing committee for immediate suspension: no breach: no damages.
Modahl v British Athletic Federation
sued oxford on the basis of CRA required reasonable care: had failed her exams three times. To qualify for a breach: their acts or ommissions had to be so far below level of reasonable care so as to be negligent. No breach.
Abramova v Oxford Institute of Legal Practice
Frost v Knight - anticipatory breach. Engaged and supposed to marry after father’s death. She sued after he broke it off even though father hadn’t died yet. She was allowed to do so.
Frost v Knight
tour guide: cancelled before the trip was supposed to happen. Allowed to sue right away.
Hochster v de la Tour
C to laod ship: was told no longer needed: but he left ship until the last day instead of suing right away. War broke out and he couldn’t sue any longer as this frustrated the c.
Avery v Bowden
Repudiation is where one party makes it clear they no longer intend to be bound by the c. Drastic conclusion only to arise in cases of clear refusal in a matter going straight to the root of the contract. Had paid a deposit on a Ferrari. C allowed raising price to cover costs. They asked for 40k with a letter saying if he didn’t pay they would consider the contract repudiated. They didn’t have the right to ask for so much: but he should have paid the rest. They were able to keep the deposit.
Vaswani v Italian Motors
Choice to affirm or discharge. Notice sent to the other party they would refuse cargo based on it being late. The other party did nothing: and this was considered sufficient acceptance of the repudiation. Once the innocent party has made his choice clear: that choice is final
Vitol SA v Norelf Ltd.
Became dissatisfied with word: said C allowed them to cancel. They wanted to remove permission for the other to enter the land to finish work. Courts said they weren’t allowed to restrict permission.
Hunslow v Twikenham Garden
3-year deal on advs on trash cans. After C: they said they wanted to cancel. Other party performed the entire 3 years and then sued for the entire amount. It was their option to reinstate the contract. It was their right no matter how unreasonable.
White and Carter v McGregor
Charter of old ship. Contract repudiated: but they spent 800k renovating ship in order to perform the contract and kept crew at disposal for entire length of contract: then claimed. This was rejected: no legitimate interest for them to continue performance other than claiming damages.
Clea Shipping v Bulk Oil
question was whether other party could continue performance without delivery of CDs. A right to payment was not considered dependent on the performance of services solely because the payment was to b maid in exchange for the services. The payments here were not linked to a specific perormance but on specified dates: and the last payment was due. White and Carter reaffirmed: the restrictions against unwanted performance are narrow in scope and can’t force the innocent party to stop performing if they want to keep going.
Ministry of Sound v World Online
Formalities of an agreement: 1. Partial discharge - small alterations must be in writing. 2. complete discharge: oral agreement sufficient. 3. Fresh agreement. Oral discharge sufficient for the old agreement: but the new one must be in writing.
Morris v Baron
Condition subsequent is when the parties agree at the beginning that if something happens the ocntract is discharged. Here the C said that if he took drugs: the swimmer’s contract was discharged.
Bland v Sparkes
