Performance

Question 1

The entire/strict performance rule

Answer 1

The entire obligation must be performed completely in it’s entirety
CL: Cutter v Powell- second mate of a vessel died when the ship was 9 days short of Liverpool (49 day voyage) . An action by his widow to recover a proportion of his agreed wages failed because the performance of the contract was not exact and entire

Question 2

Exceptions to the entire/strict performance rule

Answer 2

• Substantial performance
• Part performance
• Divisible contracts
• Prevention of performance
• Tender of performance
• Time of performance
• Vicarious performance

Question 3

Substantial performance

Answer 3

If the entire obligation has been performed except for a few minor details, the contract will be considered enforceable, subject to the minor defects
CL:* Hoenig v Isaac- The contract fee was 750 pounds and the cost of remedying defects was just over 55 pounds. Minor defects are acceptable as in essence the contract has been performed.*
In contrast:
Bolton v Mahadeva- The contract fee was 560 pounds and there were significant defects. The costs to rectify were 174 pounds and it was held that the contract had not been substantially performed (Major defects mean the contract was not performed)

Question 4

Part performance

Answer 4

The aggrieved party can accept part performance of an entire obligation, if it’s a matter of actual choice.
CL: Sumpter v Hedges- contract to build two houses and stables for 565 pounds on the defendants land. The contract was abandoned after work was done to the value of 333 pounds. Held that claimant couldn’t recover money, as the other party had not accepted this and partial performance had to be a matter of real choice.

Question 5

Divisible contracts

Answer 5

A contract may be divided into separate parts, so that the claimant can be paid for each part that has been delivered/completed
CL: Ritchie v Atkinson- Claimant agreed to carry a specified quantity of hemp and iron. Price agreed was 5 pounds per ton(hemp) and 5 shillings per ton(iron). The claimant only carried part of the agreed quantity. The defendant argued that the contract hadn’t been fully performed and no payment was due.
* Court ruled that payment should be made for parts of the contract delivered; lack of delivery of other parts didn’t need to be paid(damages)

Question 6

Prevention of performance

Answer 6

The claimant can claim for work done on a quantum meruit basis(i.e. amount merited/deserved)
CL:Planche v Colburn- A writer was allowed payment for the work he had already done when the publisher abandoned the series

Question 7

Tender of performance

Answer 7

• If a party to a contract cannot complete performance without the concurrence of the other party. then the offer by them to perform and a rejection of that offer by the other party entitles the innocent party to be discharged from further liability.
• One party has completed their part of the contract but the other hasn’t when they shouldv’e done. In this instance the completing party can be discharged from the contract.

Question 8

Time of performance

Answer 8

Equity considers time is not of the essence in a contract. However, it’ll be under the following circumstances:
* It is stipulated(specified a requirement) in the contract
* The type of contract makes it imperative that time should be observed(e.g contract for perishable goods)
* One party has given reasonable notice during the existence of the contract that performance must take place within a certain time.
* CL:* Rickards v Oppenheim- The defendant gave final notice that if a car wasn’t delivered in a specified time, they’d cancel the order. It was held that time had been made of the essence by this final notice.*

Question 9

Vicarious performance

Answer 9

• Also known as delegated performance and is where the debtor has assigned their liability to another but is not relieved from their obligation to ensure the due performance of their contract with the original party/ies
• It’ll not always be possible to delegate to another, and each case will depend on it’s own circumstances
• CL: Robinson and Sharpe v Drummond- B agreed to build a carriage and hire it to A for 5 years. B was to keep the carriage in repair. 2 years later B retired and assigned the business to C. It was held that the contract between A and B was personal, and A could reject the performance offer by C