Performance and Breach

Question 1

What is the common law rule of discharge by performance?

Answer 1

Cutter v Powell - Contracts are complete performed if they are complete and exact, if not they are breached.

Question 2

What are the 4 performance exceptions?

Answer 2

1. Divisible contracts
2. Substantial performance
3. Prevention of full performance
4. Accepting of partial performance.

Question 3

Discuss divisible contracts?

Answer 3

When contracts can be divided up into separate parts such that breach of one part does not breach the entire contract. For example, if D is paid £5 per day, C could claim £5 for each day that wasn’t worked.
Richie v Atkinson- R could claim damages from A for the remaining cargo that A did not deliver.

Question 4

Discuss substantial performance?

Answer 4

When one party substantially performs the contract, but with minor defects, the other party may have to pay the contract price, minus the cost of the defective performance.
Hoenig v Isaacs - If work required by the contract has been substantially performed, it can still be successfully discharged rather than breached.

Question 5

Discuss prevention of full performance?

Answer 5

When one party prevents the other from fully performing a contract as agreed. this may not be breach as non-completion is not the party’s fault.
Planche v Colburn - P was entitled to claim for the books they had written.

Question 6

Discuss acceptance of partial performance?

Answer 6

If one party fails to complete performance, the victim of the breach can accept partial performance and pay for what has been provided.
Sumpster v Hedges - They was no acceptance of partial performance and S was still in breach.

Question 7

What is the general rule for timing of performance?

Answer 7

A time stipulation in a contract is always a condition if time is ‘of the essence’, as in Union Eagle v Golden Achievement
I.e. when this is expressly stated. when one party is notified of it or the circumstances make it clear.

Question 8

What are the 2 types of breach?

Answer 8

• Anticipatory - When one party knows they are not going to complete the contract
• Actual - When the contract is not performed.

Question 9

What does anticipatory breach allow the V of the breach to do?

Answer 9

• Immediately sue

- Wait for actual breach and then sue (as in Hochester v De La Tour)