Performance Flashcards
What is performance?
It is one way that a contract can be discharged/ come to an end.
It occurs when both parties have done their side of the contract.
What is the strict rule and what cases is this illustrated in?
There should be complete and exact performance of all obligations under the contract.
Cutter V Powell-
- Signed up for whole voyage but died mid-way.
- Wife could not claim for wages up until that point as there had not been performance.
Re Moore V Landauer-
- Fruit packaged in wrong sized boxes.
- Performance was not exact and therefore had not been performed so the buyer could reject.
What are the exceptions to the strict rule (PADS)?
- Prevention of performance
- Accepted part-performance
- Divisible contracts
- Substantial performance
What does quantum merit mean?
They will be paid ‘the amount they deserve’ or ‘the amount they have earned’.
What is prevention of performance and what case was this illustrated in?
If one party prevents the other party from carrying out their side of the contract. Then they can be paid on a quantum meriut basis.
Planche V Colburn-
- Hired an author to write series of books but abandoned the series half way through.
- Author therefore couldn’t finish so was entitled to recover a fee.
What is meant by accepted part performance and what case was it illustrated in?
If one party has part performed to the contract and the other agrees to accept it, and they had genuine choice as to whether to accept it or not. They will be paid on a quantum meriut basis.
Sumpter V Hedges-
- Builder part built a house and stables, claimed for half money as he said there had been acceptance of partial performance.
- Customer was forced to accept the partial performance therefore no genuine choice and builder could not claim.
What is meant by divisible contracts and what case was this illustrated in?
When a contract can be clearly divided into sections, by failing to do one part will not mean they are in breach of the whole contract. Just the part they failed to do.
Ritchie V Atkinson-
- Agreed to carry cargo at an agreed rate per tonne, but only carried part of the cargo.
- Paid for the part he had carried but liable in damages for the rest.
What is meant by substantial performance?
If you have done all of the work but some isn’t done good or you have done most of the work, then you can be paid for the ‘substantial’ work that you have done.
What cases illustrate substantial performance?
Dakin & Co V Lee-
- Agreed to repair premises for £1500 but there were 3 poorly performed aspects, would cost £80 to rectify.
- Paid for the substantial work with a deduction for the defective work.
Theres no definition of substantial so it depends on the circumstances of the case.
Hoenig V Isaacs-
- £750 to decorate and furnish a room, were defects would cost up to £55.
- Paid for the work done minus the cost of repairs.
Bolton V Mahadeva-
- CH installed for £560, install was defective would cost £150 to repair.
- Only 69% done was not considered substantial so did not have to pay.
Young v Thames properties-
- Substantial performance but not exact performance as they did not resurface car park to the exact depth they were meant to.
- Minor defect, entitles to the money minus money saved by not resurfacing to the exact depth.
Is time of performance important?
Late performance is not enough to give the other the right to abandon the contract, although they may be able to claim damages for this.
There are exceptions to this rule.
When will time be important to performance (COB)?
- Contract
- Obvious
- Becomes
What is meant by contract and what case was it illustrated in?
This is when the contract states time is of the essence.
Union Eagle V Golden achievement-
- Completion time stipulated to be 5pm and was ‘of the essence’.
- Wasn’t completed until 5:10 pm.
- Could withdraw from the contract as not completed.
What is meant by obvious?
It is obvious that the time of performance is critical e.g. perishable goods, a wedding dress.
What is meant by becomes and what case was this illustrated in?
When one party is already late with performance, the other party can make performance ‘time is of the essence’ and it must be completed by a certain time.
Charles Rickards V Oppenhiem-
- Took too long to deliver the car so he said it now had to be within next 28 days.
- Delivered after the 28 days and the buyer could reject.
What are the remedies for failure to perform?
- An order of Quantum meriut- payment for the work that’s been done.
- An order of specific performance- order the job to be completed.
- An award of damages- money for the breach of contract.
- Right of repudiation- right to withdraw from the contract.
