D Flashcards
Cutter v Powell (1795)
Judgment: As the contract was for the whole voyage, he had not performed his contract by dying part way through!
Re Moore and Co. Ltd and Landauer and Co’s Arbitration (1921)
Judgment: Total number of tinned peaches was correct, but the number of tins in each carton was incorrect so the goods did not correspond with the description in the contract.
Divisible contracts
Where a contract has separate parts, non-completion of one part is not a breach of the whole contract.
Ritchie v Atkinson (1808)
Judgment: The ship owner was entitled to be paid for the part of the cargo he had carried as the contract was divisible i.e. whole contract not breached.
Substantial performance
The doctrine of substantial performance may apply if a party has done substantially what was required under the contract.
If applicable, payment of the amount appropropriate to what has been done.
Often occurs in larger contracts where little things are not performed as exactly as expected.
Dakin and Co. v Lee (1916)
Judgment: Substantial performance applied as there were relatively minor defects in the builder’s work.
How is it decided what is substantial performance
Decided case by case as to what constitutes substantial performance.
See Hoenig v Isaacs (1952) -
Quantum meruit - as much as it is worth.
Bolton v Mahadeva (1972)
£170 repair for £560 worth of work deemed not to be substantial performance.
Prevention of full performance
If one party prevents the other from carrying out his contract, then the innocent party can claim to be paid on a quantum meruit basis.
Planche v Colburn
Judgment: An author was prevented from carrying out his contract so was paid on a quantum meruit basis.
Acceptance of part-performance
If one party has agreed the other party need not complete the entire contract then the contract must be paid for on a quantum meruit basis.
The consent must be:
A specific acknowledgement that the defaulting party is entitled to be paid for what has been completed so far;
agreement made without undue pressure.
If innocent party has no option but to take the benefit of the work done, not considered as consent to part-performance
Sumpter v Hedges (1898)
Judgement: The builder was not entitled to be paid for the work he had done so far as the customer had no alternative but to complete the work himself. He had not consented to the builder’s part performance.
The effect of a term as to time for performance
Courts regard time as a condition if:
the parties have expressly stated in the contract that time is of the essence of the contract i.e. timing critical for contract to be fulfilled as intended;
in the circumstances time for the completion of the contract is critical, or
one party has failed to perform on time and the other has insisted on a new date for completion of the contract (making time of the essence of the contract).
If none of the above apply, then the time for performance is treated as a warranty.
See Charles Rickards Ltd v Oppenheim (1950)
Judgment: The buyer of the Rolls-Royce was entitled to cancel the contract as time had been made of the essence and that term had not been complied with.
The effect of a term as to time for performance
See Union Eagle Ltd v Golden Achievement Ltd (1997)
Judgment: The time for the completion of the contract had been specified as 5pm and time was expressly stated to be ‘of the essence’. The purchaser delivered the purchase price at 5.10pm and the seller was entitled to repudiate the contract.
Time and the Consumer Rights Act 2015
S52 - if contract does not expressly fix time for service to be performed, the contract is to be treated as including a term that the trader must perform the service within a reasonable time.
If a trader in breach of s52, the consumer has a right to a price reduction under s54. Refund could be anything up to full contract price.
Discharge by breach
Actual breach
Three sets of circumstances giving rise to a breach of contract:
renunciation by a party of his or her liabilities under it e.g. not paying a bill on the due date;
impossibility created by his/her own act e.g. closing a hairdresser’s business for holidays with appointments during that time;
total/partial failure of performance e.g. delivering defective goods.
