Discharge By Performance

Question 1

Introduction

Answer 1

Strict rule stated that performance must be complete and exact. If obligations hadn’t been fulfilled other party didnt have to fulfill their obligations either
(Cuter v Powell) : entitled to nothing as husbands work on voyage was not complete

Can be avoided through PADS

Question 2

P

Answer 2

PREVENTION OF FULL PERFORMANCE
- Party prevents the other from performing or carrying out their contract innocent party may claim on QM basis

(Planche v Colburn) : able to recover a fee for the work done as publisher prevented full performance

Question 3

A

Answer 3

ACCEPTANCE OF PART-PERFORMANCE
- Must be consent and free from pressure
- If both parties agree full contract doesn’t have to be performed
- Paid on QM basis
- Must be agreed that party is allowed to be paid for work done
- Not considered consent if innocent party has no option but to take the benefit of the work done

(Sumpter v Hedges) : customer had no choice, builder not entitled to any payment, lack of consent

Question 4

D

Answer 4

DIVISIBLE CONTRACTS
- If contract can be divided into separate parts
- Must be clearly divided
- Non-completion of one doesn’t breach entire

(Ritchie v Atkinson) : had to pay damages as didnt carry entire cargo

Question 5

S

Answer 5

SUBSTANTIAL PERFORMANCE
- Must have completed substantially what is required
- Payment must be completed for appropriate amount done
- Wont apply if contract is seen as a single transaction (Cutter v Powell)
- Large contracts where small elements aren’t performed

(Darkin & co v Lee) : majority of contract carried out so it was substantially performed
(Hoeing v Issacs) : entitled to be paid for what he had done on QM basis as majority work was done
(Bolton v Mahadeva) : If work not substantially done, entitled to nothing

Question 6

5th element

Answer 6

TIME OF PERFORMANCE IF IMPORTANT
- If time seen as a condition
1. If expressly identified it is time of the essence
2. Critical for completion
3. If party insists on another date of completion
—> if none above apply will be seen as a warranty

(Union Eagle v Golden Achievement) : Time was a condition so seller repudiated contract
(Hakimzay v Swailes) : if ‘essence’ is waived then it will be reinstated as a term so it doesn’t arise

Question 7

What remedies are available?

Answer 7

1. Quantum meruit
2. Repudiation
3. Specific performance
4. Damages