Chapter 42 - Discharge by performance

Question 1

Discharge by Performance

Answer 1

-The strict rule of discharge by performance is that performance must be complete and exact
-Case showing the rule is Cutter v Powell

Question 2

Where harshness of discharge by performance is reduced

Answer 2

-Tender of performance
-Severable contracts
-Substantial performance
-Acceptance of a partial performance
-Delayed performance

Question 3

Tender of Performance

Answer 3

-If one party prevents the other from carrying out his contract, then the innocent party can claim to be paid on a quantum merit.
-Seen in Planche v Colburn

Question 4

Severable contracts

Answer 4

-Where a contract can be seen as being separate parts, non-completion of one part is not a breach of the whole contract
-Seen in Ritchie v Atkinson

Question 5

Substantial Performance

Answer 5

-Where one party has done almost everything that was required
-Where this applies, there must be payment for the amount that has been done
-Does not apply where the contract is considered an entire contract
-Dakin and Co. v Lee

Question 6

Acceptance of part performance

Answer 6

-If one party agreed the other party need not to complete the entire contract, the contract must be paid on a quantum merit basis
-Must be full consent to accept part performance
-If innocent party has no choice but to accept part performance, then this is not consent
-Shown in sumpter v Hedges

Question 7

Delayed performance

Answer 7

Courts will regard time as a condition if:
-Performance of contract must be completed by a certain time is clearly stated in the contract
-Is time for completion critical
-One party has failed to perform on time and the other is insisting on a new date and time

If none of these points are present then it is treated as an innominate term. And the breach will be examined, Seen in Charles Rickards Ltd v Oppenheim