PERFORMANCE

Question 1

WHEN DISCHARGING A CONTRACT BY PERFORMANCE ONE MUST SEE IF…

Answer 1

• THE CONTRACT IS AN ENTIRE CONTRACT
• IF IT IS POSSIBLE TO SEPERATE THE CONTRACT INTO SEVERAL DIVISIBLE PARTS

Question 2

ENTIRE/STRICT PERFORMANCE RULE
Where a contract is one where the price is payable on completion, then completion is generally required in order to discharge the contract. This is often expressed in the terms of being a condition precedent. Completion triggers the requirement of payment: no completion, no payment.

Answer 2

ENTIRE OBLIGATION MUST BE PERFORMED COMPLETELY AND IN ITS ENTIRETY.

(CUTTER V POWELL)

Question 3

part performance

Answer 3

where aggrieved party can accept part performance of an entire obligation. the whole sum is payable for work completed as long as there was free acceptance by aggrieved party

(sumpter v hedges)

Question 3

SUBSTANTIALPERFORMANCE

Answer 3

THIS IS WHEN A REASONABLE OR SUBSTANTIAL AMOUNT OF THE CONTRACT HAS BEEN PERFORMED.
THE COURTS NOW DEDUCT THE AMOUNT OF MONEY TO REFLECT THE MINOR DEFECTS LEFT. HOWEVER DIFFICULTY ARISES FROM WHAT IS SUBSTANTIAL PERFORMANCE AND ITS DECIDED ON A CASE BY CASE BASIS

(BOLTON V MAHADEVA)

(HOENIG V ISAACS)cost of minor defects was over 100pounds was held there was no substantial performance

Question 4

divisible contracts

Answer 4

Where it is possible to divide a contract into separate parts, eg. if a sum is agreed to be payable per week or hour, then the courts can award a sum for the separate parts of the contract which have been completed

(ritchie v atkinson)

Question 5

prevention of performance

Answer 5

Where the promisee prevents completion of the performance then the promisor is entitled to payment for the work done on a quantum meruit basis

(planche v colbourn)

Question 6

tender of performance

Answer 6

Where a party is willing to perform and tries to tender performance but the other party does not accept the performance or cannot perform without the concurrence of the other party then the party seeking to tender performance is discharged from the contract and the non accepting party is liable in damages for rejection.

(startup v macdonald)

Question 7

time of performance

Answer 7

equity considers time is not of the essence in a contract but not in the following circumstances…
- it is stated in the contract
- type of contract makes it imperative that time should be observed
- a party has given reasonable notice that performance should take place at an expected timeframe (rickards v oppenheim)

Question 8

vicarious performance

privity in contracts
(Contracts (Rights of Third Parties) Act 1999)

Answer 8

known as delegated performance.
where debtor has assigned their liability to another but it is not relieved from their obligation to ensure the due performance of their contract with the original party

its not always possible to delegate to a third party and each case will depend on its own circumstance
(ROBINSON AND SHARPE V DRUMMOND)
(British Waggon Co. v. Lea & Co)