Discharge: Performance Flashcards
What are the steps for discharge through performance?
Common law rule
Equitable exceptions: divisible/severable contracts, substantial performance, prevention of full performance, acceptance fo part performance
Time as a condition
What is the common law position for performance?
Performance must be complete and exact
Which case shows the common law position for performance?
Cutter v Powell
Re Moore & Landauer
What are the 4 equitable limitations of the common law position?
Divisible/severable contracts
Substantial performance
Prevention of full performance
Acceptance of part performance
What is the equitable rule for divisible/severable contracts?
Where contracts have separate parts, non-completion of one will not be a breach of the whole contract
Which case shows a divisible/severable contract?
Ritchie v Atkinson
What is the equitable rule for substantial performance?
If the contractual duties are substantially met there must be payment appropriate to the work completed (doesn’t apply where the job cannot be broken down) - often occurs in large contracts where small aspects have not been performed
Which case shows substantial performance?
Dakin v Lee
How is “substantial” performance determined?
It depends on the circumstances of each case, usually find the percentage of the amount they did complete
((total that would’ve been owed - cost of defects) ÷ total that would’ve been owed) x 100
Which 2 cases show an indication of how much is sufficient for substantial performance?
Hoenig v Isaacs (92.5% completed, entitled to 92.5% of the price)
Bolton v Mahadeva (69% completed, not entitled to any)
What is the equitable rule for prevention of full performance?
If one party prevents the other from carrying out their part of the contract, then the innocent party can claim to be paid on a quantum meruit/pro rata basis
What is a quantum meruit basis?
They get paid what they earned (if they did 50%, they get paid 50%)
What is a pro rata basis?
They get paid proportionally to what they did (if they did 50%, they get paid 50%)
Which case shows prevention of full performance?
Planche v Colburn
What is the equitable rule for acceptance of part performance?
If one party has agreed that the other need not complete the entire contract, then they must pay them on a quantum meruit basis
