Performance and Breach

Question 0

The Sale of Goods Act 1979, section 11

Answer 0

(2) a buyer may treat a breached condition as ground for repudiation or may elect to treat it as a breach of warranty
(3) breach of condition mean repudiation is available; breach of warranty means only damages; election does not make a condition a warranty it is a matter of construction

Question 1

Treital’s definition of breach

Answer 1

A breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, performs defectively or incapacitates himself from performance

Question 2

SOGA 1979 Section 12-15

Answer 2

Recognises and implements the difference between conditions and warranties

Question 3

SOGA 1979 15A

Answer 3

A non-consumer can only get damages where a breach is so slight it would be unreasonable to reject the goods

Question 4

Hong Kong Fir Shipping (1962) CA

Answer 4

Treital views this as a landmark case; ship must be seaworthy; ruled this is an innominate term where only actionable where the result of the breach was so fundamental it goes to the root of the contract/substantially deprives of the benefit (Lord Diplock); more flexible but less certainty

Question 5

Bunge Corp v Tradax (1981) HL

Answer 5

There is an assumption in a contract where “time is of the essence” that time is always a condition

Question 6

The Mihalis Angelos (1971)

Answer 6

Valued certainty over flexibility and rejected to apply the in nominate term rule; expected readiness to load clause was condition regardless of effect

Question 7

Wickman v Schuler (1974) HL

Answer 7

Contract elected visiting factories as a condition but court says no on construction

Question 8

Lombard V Butterworth (1987)

Answer 8

Time is of the essence always a term despite magnitude of the breach

Question 9

Bettini v Gye (1876)

Answer 9

Opera singer 3 days late for rehearsal

Question 10

Pussard v Spiers (1876)

Answer 10

Opera case is breach when a week late into season

Question 11

Vital v Norelf (1996)

Answer 11

Exceptional circumstance where silence amounted to acceptance of rescission; “silence was pregnant with meaning” as conduct explicitly showed acceptance

Question 12

Cutter v Powell (1795)

Answer 12

Second mate written agreement was an entire obligation so no part payment allowed

Question 13

Simon v Hedges (1898)

Answer 13

Builder only reimbursed martial costs not cost for half of labour

Question 14

Hoeing v Isaacs (1982) CA

Answer 14

The decoration work was defective but only allowed cost of repairs (£55) off price of complete contract

Question 15

Bolton v Mahdeva (1972) CA

Answer 15

Defective central hearing was not substantial performance so no payment

Question 16

Law Commission on Substantial Performance

Answer 16

Felt Bolton should receive some payment but government disagreed as it is the house owners only weapon against the builder

Question 17

White & Carter v McGregor (1962)

Answer 17

Bun advertisements, no effort to mitigate but still must perform; Lord Reid considered no legitimate interest concept

Question 18

The Alaskan Trader (1984)

Answer 18

An exceptional circumstance where no legitimate interest in keeping the contract open, difficult to distinguish from White & Carter v McGregor; should there be evidence given on how to mitigate loss?

Question 19

Frost v Knight (1872)

Answer 19

Promised to marry when dad died but changed mind before death; able to repudiate from moment of declaration did not need to wait until day of performance

Question 20

Woodarin v Wimpey (1980)

Answer 20

Necessary to look at conduct as an indicator of repudiation

Question 21

UCTA 1977

Answer 21

6(1) section 12 of SOGA can not be excluded against

6(2) nor can section 13 for consumers and where it would be unreasonable in commercial contracts

Question 22

Rice v Great Yarmouth BC

Answer 22

Courts reluctant to give effect to term covering “any breach”