Contract Law Second Term - PERFORMANCE AND BREACH Flashcards
Why was the case so decided in The Mihalis Angelos?
Certainty in such expected readiness dates, unreasonable and forms a condition for sale of goods carried by sea usually
Federal Commerce v Molena Alpha
Allow repudiation regardless of D’s good faith
SoGA s.30(1)
Reject less than ordered or pay for what received
Why is it arguable if the principle in White and Carter applies to electing affirmation?
May not be part of ratio, but needed to form majority with Tucker and Hounslow
What case shows C needing D’s cooperation to affirm the contract?
The Puerto Bultrago
Eminence Property v Heaney
Requisite notice period; solicitor mistake
Cutter v Powell
Sailor’s widow
Bunge Corp v Tradax Export
Readiness of loading notice given with less time than required in express condition
Dawson v Dyer
LC1 for quiet enjoyment
In what case did the judges decide that, despite parties’ intentions, a condition was not a condition?
Schuler v Wickman; ‘more unreasonable the result the more unlikely it is’
What did the owners claim in Mihalis Angelo?
Anticipatory breach
Why is the case of Bunge Corp v Tradax Export perhaps an oversimplification?
There are other factors to take into account when deciding if it is a condition than just commercial certainty
The Hongkong Fir
Seaworthiness
What are dependent obligations further broken down into?
Entire and divisible obligations
What is the default term through judicial classification?
Innominate
Stocznia Gdanska v Latvian Shipping
Period of reasonable time
How does Liu suggest we reform the ‘wholly unreasonable’ test?
Confine discretion to factors affecting the weighing of wastefulness against sanctity of contract
what are two criticisms of white and carter?
Repudiatory breach would require C to mitigate, but claim for debt does not; Contract would not have been specifically enforceable
Woodard Investment v Wimpey
Reluctant to allow repudiation if D in good faith
What did the charterers claim in Mihalis?
Owners had committed a breach by not being there by the time of the expected readiness date
Sumpter v Hedges
No choice but to accept, BUT tools
When does C lose a right to elect termination?
They waive it, they continue performance or they keep the contract ‘on foot’
Who highlights that identifying a condition is very hard?
Treitel
What test did Etherton J give in Eminence Property for good faith in electing termination?
Did D show a clear, objective intention to abandon and reuse to perform?
Taylor v Webb
Tenant’s obligation to pay rent
What is an example of an independent obligation?
Taylor v Webb; Dawson v Dyer
Telford Homes v Ampurius Nu
Test for BoC ‘sets the bar high’ in The Hongkong Fir as based off frustration analogies
What are the two restriction on affirmation?
Must not need D’s cooperation and burden on D to show C has no legitimate interest
What are the three ways to find a condition in a contract?
Statutory classification, parties’ intentions and judicial classification
What kind of term was found in Hongkong Fir?
Innominate
What does the case of Stocznia Gdanska v Latvian Shipping recognise?
Commercial reality
When is BoC not a matter of strict liability?
S.13 SoGA
What are the two ways to perform an anticipatory breach?
Renunciation and impossibility
What case places restrictions on the right to affirm?
White and Carter, per Lord Reid
What three cases suggest good faith of D MAY be relevant for electing termination?
Woodar Investment v Wimpey; Federal Commerce v Molena Alpha; Eminence Property v Heaney
What are the three mitigating circumstances for entire obligations?
Substantial performance, restitution for benefit accepted and doctrine of quantum meruit
What case attempts a reconciliation between Wimpey and Molena Alpha?
Eminence Property v Heaney
What distinguished Financing Ltd v Baldock from Butterworth?
Time was not ‘of the essence’, so failure to pay allowed termination but could only claim for loss of rentals at date of termination.
Who declare the legitimate interest test ‘unintelligible and elusive’, and suggests a reformation of the ‘wholly unreasonable’ test?
Q Liu
What case outlines a lack of legitimate interest as enforcement being ‘wholly unreasonable’?
The Alaskan Trader
What are contingent obligations further broken down into?
Condition precedent and subsequent
Schuler v Wickman
Panel presses, clause 7 on visits (1400)
Who noted how in the Hansa Nord –> Citrus pellets, the CoA took a stand against ‘bad faith’ and ‘economic opportunism within a contractual relationship’.
Professor Brownsword
Photo Production v Securicor Transport on outcome of electing termination
Leaves intact accrued rights but released from future obligations
The Odenfield on White and Carter
Fetters on election are only in ‘extreme cases’
What are the three types of performance obligations?
Contingent, independent and dependent
What did Denning criticise in The Puerto Bultrago?
Trying to enforce specific performance when damages are adequate
Financing Ltd v Baldock
Lorry; failure to pay within 10 days
What does the case of Bunge Corp v Tradax Export show a swing in favour of?
Certainty
Lombard North Central v Butterworth
Computers, ‘time was of the essence’
What could they claim for in Butterworth having noted payment on time to be a condition?
Arrears, future instalment and repudiatory termination
What damages can C not claim if they elect affirmation?
Loss of bargain
From when does rescission set the contract aside?
Origin
What does Brownsword suggest as an alternative in determining termination?
Look at motivations of parties rather than entitlement to terminate
Peyman v Lanjani
Need to express clear intention to continue with contract
what does the hansa nord show a swing in favour of?
Construction as innominate term
The Mihalis Angelo
Apatite ore; loading date
What damages does termination lead to?
Expectation
Who criticises Brownsword’s alternative approach in termination?
McKendrick
The Puerto Bultrago
$2 million but $1 million
What are two(three) reasons why C may want to affirm?
Hard to recover expenses through contractual claim and termination may damage their reputation/put them in breach with 3rd parties
The Alaskan Trade
‘There is such a point’ where courts ‘on general equitable principles’ will not allow enforcement, e.g. when ‘wholly unreasonable’ because damages are enough
What are two ways to defend White and Carter?
English law does not require C to be reasonable in selecting remedies; ensures contracts undertaken are actually performed
Why did they classify the term as innominate?
Merchantable quality still (s.14(1) SoGA) as they used them and clause not a condition expressly or through authority
What two types of breaches are there?
Anticipatory and at time of contract
What are three types of terms?
Warranty, condition or innominate
The Hansa Nord
Citrus pulp pellets, part but not all damages
Re Hall & Barker
Shoe maker analogy for entire obligations
What is an example of a statutory classification of a condition?
S.12(1) SoGA
What does the case of Stocznia Gdansk enforce a claimant must do to keep the right to elect?
Expressly reserve the right if they call upon performance
Dakin (H) v Lee
Trivial repairs (£1500)
