Term
| Ways in which contractual obligations end: |
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Definition
- Performance
- Breach
- Agreement
- Frustration |
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Term
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Definition
Re Moore and Co's and Launder & Co's arbitration
Performance must be exact and precise.
This has now been mitigated by SGA 1979 |
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Term
| Performance - exceptions to the basic rule |
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Definition
- Substantial performance
- Acceptance of partial performance
- Tender of performance
- Divisible contracts |
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Term
| Performance - exceptions - substantial performance |
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Definition
Where full performance is undermined by minor defects, then the party is allowed to claim the price, less the cost of rectifying the defects.
- Hoenig v Isaacs |
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Term
| Performance - exceptions - partial performance |
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Definition
Where one side only partially performs, the other may promise to accept what work has been done. The promisee will have to pay on a quantum meruit basis.
- Sumpter v Hedges |
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Term
| Performance - exceptions - Tender of performance |
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Definition
Where one side offers a tender to perform and is refused, then he may treat the refusal as the end of his contractual obligations.
- Startup v Macdonald |
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Term
| Performance - exceptions - divisible contracts |
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Definition
A contract in which partial performance attracts an obligation to pay part of the consideration.
Roberts v Havelock |
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Term
| Performance - exceptions - time |
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Definition
A contract may only be repudiated for breach of a time/ date clause where "time is of the essence"
- Contract expressly states that this is the case
- it may be inferred (i.e. perishable goods) |
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Term
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Definition
| A failure to perform any of the obligations as defined within the terms of the contract. |
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Term
| Breach - Repudiatory Breach |
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Definition
| For a breach to result in repudiation it must be a breach of condition, or a sufficiently damaging breach of an inominate term. |
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Term
| Breach - anticipatory breach |
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Definition
Occurs before performance is due. One party makes the other aware that they will not perform their obligations:
- Explicitly (Hochester v De La Tour)
- Implied by conduct (Frost v Knight) |
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Term
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Definition
A contract may be discharged by agreement. No problem where consideration is executory.
Where consideration is executed, then a deed is required and new consideration is needed.
- Voluntary waiver |
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Term
| Frustration - historical rule |
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Definition
Paradine v Jane
Absolute obligation no matter what events occur over the course of the contract. |
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Term
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Definition
Old theory - new implied term (now out of favour due to artificiality)
Preferred theory: change in contractual obligations (Davis Contractors v Fareham UDC) |
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Term
| Frustration - Types of frustrating event |
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Definition
- impossibility
- illegality
- change in circumstances |
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Term
| Frustration - types of frustrating event - impossibility |
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Definition
- Subject matter is destroyed (Taylor v Caldwell
- The subject matter becomes unavailable (Jackson v Union Marine Insurance Ltd.
- A person required for performance becomes unavailable through illness (Robinson v Davidson) |
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Term
| Frustration - types of frustrating event - change in circumstances |
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Definition
A contract may be frustrated where there is an event which destroys all commercial purpose:
- Krell v Henry
ALL commercial purpose must be destroyed:
- Herne Bay Steamboat Co v Hutton |
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Term
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Definition
Frustration does not apply when:
- it is self induced (The Super Servant Two)
- The contract is merely more difficult (Davis Contractors v Fareham UDC)
- The event was borne in contemplation (Amalgamated investment & Property Co)
- There were provisions for the event (Fibrosa Spolka Akcyjna) |
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Term
| Frustration - effect at common law |
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Definition
The contract ends at the time of the frustrating event.
Any money paid before the event will be repayable if there was a total failure of consideration. |
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Term
| Frustration - Law Reform (Frustrated Contracts) Act 1943 |
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Definition
Covers:
- money paid in advance (confirmation of fibrosa): s1(2)
- Work already completed
- benefit gained through partial performance s1(3) |
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