discharge by performance Flashcards
discharge by performance
both parties must have don exactly what they promised and that performance is full + complete
if performance by one party was incomplete, then the contract hadn’t been discharged - Cutter v Powell
courts have developed exceptions:
> divisible contracts
substantial performance
full performance prevented by D
part performance
late performance
divisible contracts
when a contract can be seen as being separate parts, non-completion of one part is not a breach of a whole contract
Ritchie v Atkinson
Ship owner agreed to carry cargo at a price per ton, only carried part of it. He was entitled to be paid for the pat of the cargo he carried
substantial performance
if a party has done almost everything that was required under the contract, the doctrine of substantial performance may apply .
Where it does apply, there must be payments of the amount for what has been done - quantum meruit
doesn’t apply where contract is considered whole
Dakin v Lee
builders agreed to repair Ds premises for £1500 . They performed the contract completely but 3 aspects were done poorly, cost £80 to put right .
Contract was substantially performed- pay a price with a reduction of defective work
(done badly didn’t mean it hadn’t been done)
Bolton v Mahadeva
not substantial if what has been done ‘removes the whole benefit of the contract or causes further damage’
C was entitled to no money as defects in the work would cost £174 to fix
full performance prevented by D
if one party prevents the other from carrying out his contract then the innocent party can e claimed on a quantum meruit basis (as much as its worth)
Planche v Colburn
Publisher hired an author to write a book for a series. When publisher abandoned whole series, the author was entitled to fees of his wasted work.
Startup v Macdonald
contract for 10 tons of oil to be delivered within the last 14 days of March. Oil delivered 8pm on March 31st - D refused to accept due to lateness of the hour
C had tendered performance within the agreed period. Time didn’t matter as it was within the day
Tender of performance
where a party has a time frame to get a contractual obligation done by
part performance
(D accepted it from C)
if one party agreed the other party doesn’t need to complete the entire contract, the contract must be paid for on a quantum meruit basis
But, D doesn’t have to pay anything if they had no choice but to accept the part performance
Sumpter v Hedges
builder stopped in the middle of building 2 houses so D finished the work himself - builder demanded to be paid for the work.
D had no choice but to finish the work himself - this did not mean he accepted part performance so no need to pay anything
would be different if work amounted to substantial performance
late performance
used for a contract that has a term specifying a time frame. The court regards time as a condition if ; the parties have expressly stated a time limit , circumstances - timing in the contract is critical , one party has failed to perform on time and other party insisted a new date of completion.
Late in completion = repudiation + no need to complete their part
Charles Rickards v Oppenheim
late completion of a Rolls Royce after deadline was set.
C was entitled to cancel the contract as time had been made of the essence and that term had not been complied with
