discharge by performance

Question 1

What is discharge of a contract?

Answer 1

The contract is brought to an end

Where a contract is discharged, each party is freed from their continuing obligations under the contract

Question 2

What are 3 ways today discharge a contract?

Answer 2

• by performance
• by frustration
• by breach

Question 3

Discharge by performance

Answer 3

Has a strict rule that performance must be complete and exact.
This is seen in Cuttler v Powell

Question 4

Cutter v Powell

Answer 4

Cutter agreed to work as a second mate on voyage for a fixed fee. Died near the end. Widow sued for a proportion of fee.

Court held she was entitled to nothing as he agreed to work for the entire voyage and had not done so, and thus had not performer the contract completely and exactly as expected.

Question 5

How has the harshness of the rule regarding discharge by performance been tempered?

Answer 5

• divisible contracts
• substantial performance
• prevention of full performance
• acceptance of part performance

Question 6

Divisible contracts

Answer 6

Where a contract can be seen as having seperate parts, then non-completion of one part is not a breach of the whole contracy.

Case -> Ritchie v Atkinson

Question 7

Ritchie v Atkinson

Answer 7

Ship owner agreed to carry cargo at an agreed rate per ton. He carried only a part of the cargo. Ship owner was entitled to be paid for the part of the cargo he had carried at the agreed price per ton

Divisible contract case

Question 8

Substantial performance

Answer 8

If a party has done substantially what was required under the contract, then the doctrine of substantial performance may apply. Where it does apply, there must be payment of the amount appropriate to what has been done.

Often occurs in large contracts where little things are not performed exactly

• dakin & co v lee
• hoenig v isaacs
• bolton v mahedeva