Performance Flashcards
Necessities for good performance
Performance must be precise and exact and for services the standard is reasonable care (Lister v Romford Ice [1957]). The slightest deviation in contracts gives right to discharge (Re Moore and Landauer [1921], even if no damage has occurred (Re Sutro and Heilbut [1917]). De minimis applies.
Necessity of time
Where time is specified as of the essence, breach of it gives rise to discharge (USH v Burnley [1978]).
Subcontracting
Work can be subcontracted out (British Waggon v Lea (1880)) unless the person has been specifically employed for their skill (Moresk Cleaners v Hicks [1966]).
Can a misperformance be remedied with a correct performance?
A misperformance can be remedied by a correct performance within the time frame, before the other party has repudiated the contract (Borrowman, Phillips v Free & Hollins (1878)).
Divisible and entire obligations
Some obligations can be divided but some cannot (Cutter v Powell (1795)). If performances are divisible in a contract then payment can be made for what has been completed.
Substantial performance
However, if the obligation has been substantially performed and the cost of remedying is great, the courts will require part payment for the work done (Hoenig v Isaacs [1952]).
Partial payment for partial performance
Partial payment can be accepted by the innocent party and payment will be calculated on quantum meruit.
Incontrovertible benefit
If an incontrovertible benefit has been received, then part payment will be received (Hain v Tate and Lyle [1936]).
Discharge by breach
Breach can be non-performance, done outside the time frame, or an incorrect fulfilment.
Remedies from breach
Breach sometimes gives a right to terminate a contract (Photo Production v Securicor [1980]) but damages will mostly be required.
Acceptance of breach
Acceptance of a breach to discharge must be clear and unequivocal (Vitol v Norelf [1996]). Continued performance can be insisted upon (White and Carter v McGregor [1962]).
Affirmation
An affirmation does not absolve the ability to claim damages. Affirmation must be unequivocal (China National Foreign Trade Transportation v Evolgia Shipping of Panama [1979]) and total (Suisse Atlantique Societe). The reason does not have to be communicated (Taylor v Oakes Roncoroni [1922]). However Freres v General Grain [1970] states that you cannot rely on an unstated reason for discharge if it is unfair or unjust on the other party.
Forms of breach
It can be done by renunciation, impossibility or failure to perform (Heyman v Darwins [1942]).
Renunciation
For renunciation, the intention must be made known through conduct (Citati [1957]) or words. Anticipatory breaches of contract give rise to a claim for damages (Hochster v De La Tour (1853)) and the innocent party can reject the repudiation. Repudiation can occur during a contract (Cort v Ambergate Ry (1851)) so in this case the contract can be repudiated and a claim can be sustained without carrying out the rest of the contract.
Impossibility
In the event of an impossibility, the obligations of the other party will be discharged. Impossibilities can be made before the fruition of a contract (Citati) and the aggrieved party may sue at once (Lovelock v Franklyn (1846)).
