U4B: Discharge Flashcards
What is the usual method of discharge?
-Through performance
What is performance?
-Doing what you agreed to do
-You have discharged your obligations
What happens if the contract HAS NOT been performed as agreed?
-It may be discharged by breach
What happens if the contracts CANNOT be performed?
-It may be discharged by frustration
What is the ruling on performance + how strict it should be?
-SHOULD BE STRICT= There should be exact and complete performance of ALL obligations under the contract.
What is the ruling on performance of how exact/complete it should be + CASE x2 ?
-SHOULD BE EXACT: Re Moore and Landauer (performamnce was not exact)
-SHOULD BE COMPLETE:- There is no payment for part performance – Cutter v Powell
What are the 5 exceptions to the general rule of performance?
(1) Tender of performance
(2) Severable contracts
(3) Substantial performance
(4) Acceptance of part performance
(5) Delayed performance
What is the exception (1) tender of performance + CASE x2?
-A party can sue for damages where his performance has been prevented by the other party – Planche v Colborn
-And also, where he has offered to perform but this has been refused – Startup v MacDonald
What is the exception (2) severable contracts+ CASE?
-If obligations are ‘divisible’ then payment should be made for the part performed – Richie v Atkinson
What is exception (3) substantial performance + CASE x2?
-Where there has been substantial performance, the full price will be paid, NOT the sum appropriate to what has not been done
– Hoenig v Issacs
-Unless too much remains to be done under the contract
- Bolton v Mahadeva (repairs would have cost almost a third of the contract price)
What is exception (4) acceptance of part performance? + CASE
-Party has accepted part-performance,this should be paid for –Sumpter vHedges
-Must be agreed by BOTH parties and needs consideration from both
What is exception (5) delayed performance + CASE
Time= a condition of the contract IF:
-Parties have expressly stated that time is a crucial part of performance;
OR
-One party has failed to perform on time and the other has insisted on a new date for completion
OTHERWISE, time will be an innominate term
How can I tell if a contract is severable?
What is fustration?
-An event which prevents performance of the contract BUT is beyond the control of either party.
What is the original rule BEFORE fustration and case?
-Paradine v Jane
-Contractual duty remianed despite intervening act
What doctrine was developed in the 19th century, contrary to the original rule + what case?
-Doctrine where in such cases obligations finished at the point of the frustrating event
-Taylor v Caldwell
What 3 elements must be established for fustration?
1) The event occurred after formation of the contract
2) Event makes performance of the contract impossible or radically different
3) The event is entirely beyond the parties’ control
What are 3 examples of fustrating IMPOSSIBLE events and their cases?
Impossibility:
-Destruction of the subject matter: Taylor v Caldwell
-Unavailability of the other party: Robinson v Davidson
-Outbreak of war: Metropolitan Water Board v Dick Kerr
What are fustrating SUBSEQUENT ILLEGALITY events and it case example?
-A change in the law which makes the contract illegal to perform in the manner anticipated
–Re Shipton Anderson
What are fustrating COMMERICIAL STERILISATION events and it case example?
-The commercial purpose in the contract is lost- Krell v Henry
-The contract will not be made VOID unless the contract is wholly devoid of purpose for both parties
-The coronation was treated as the basis of the contract by both parties
