Discharge By Performance Flashcards
Introduce discharge by performance.
- Discharge of contract - how contract comes to an end.
- Discharge by performance - usual method of discharge.
- Both parties have done what they agreed - have performed their part in line with agreed terms.
- Cutter v Powell: strict rule of discharge by performance - performance must be complete + exact.
- Harshness of rule reduced in several ways - can speak about multiple if applicable.
Explain the first way to reduce the harshness of the rule in discharge by performance, divisible contracts.
- Ritchie v Atkinson: where contract can be seen as being separate parts, non-completion of one part isn’t breach of whole contract.
Explain the second way to reduce the harshness of the rule in discharge by performance, substantial performance.
- If party has done substantially what was required under contract - must be payment of amount appropriate to what’s been done.
- Dakin v Lee: often occurs in large contracts where little things aren’t performed exactly.
- Hoening v Isaacs: no specific percentages for completion are specified as to when works been substantially completed - decided on circumstances of each case.
- On a quantum meruit basis - as much as he has earned (payed as much as you deserve based on work you’ve done).
Explain the third way to reduce the harshness of the rule in discharge by performance, prevention of full performance.
- Planche v Colburt: if one party prevents other from carrying out contract - innocent party can claim to be paid on quantum meruit basis.
Explain the fourth way to reduce the harshness of the rule in discharge by performance, acceptance of part-performance.
- If one party’s agreed other party need not complete entire contract - then paid for on quantum meruit basis.
- Consent must be in form of specific acknowledgment that V’s entitled to be paid for what they’ve completed so far + agreement we as made without undue pressure.
- Sumpter v Hedges: innocent party has no option but to take benefit of work done - not considered consent to part-performance.
Explain the effect of a term as to time for performance on contract, in relation to discharge by performance.
Only applicable if time mentioned.
Court regards time as condition if:
* Parties have expressly stated that time is of the essence.
* Or time for completion is critical.
* Or one party failed to perform on time + other insisted on new date of completion.
* If condition - remedy is recession + damages.
* If no factors apply - warranty.
* If warranty - remedy is recession + maybe damages (unlikely).
Explain time + the Consumer Rights Act 2015, in relation to discharge by performance.
Only trader to consumer scenarios.
* S.52 Consumer Rights Act 2015: if contract doesn’t expressly fix time for service to be performed - treated as term that trader must perform service within reasonable time.
