Discharge Of Contract: Performance And Breach Flashcards
(4 cards)
Discharge of contract: performance and breach plan
Contract can be discharged in 3 ways: performance, breach (actual and anticipatory), and frustration
Performance:
- Must match exactly and completely the contract’s obligations (if fails, breach)
- Modified/avoided when:
- acceptance of part-performance (if genuine) - Cutter v Powell
- substantial performance is achieved (possible to enforce appropriate payment)
- party is prevented from performing
- Time of performance:
- failure to perform on time is breach of warranty (allows damages but not repudiation of contract)
- repudiation can follow a breach if both parties made this clear, subject matter dictates such, or time extension is given on basis that repudiation will occur if deadline isn’t met
Breach:
- notion of fundamental/repudiatory breach: significant violation of core purpose of contract that injured party can rescind/affirm it
- arises where: no performance, defective performance, no justification
- types of breach:
- actual: performance failure - allows damages
- anticipatory: advance refusal before performance with intention to breach obligations - Hochester v De La Tour
- C can sue for damages without waiting for performance, or affirm the contract and wait to sue (risky route as if circumstances change, eg frustration, C can lose right to sue) - White and Carter (Councils) Ltd v McGregor
Cutter v Powell
Performance
Correct goods were delivered in wrought size cases - part performance is no performance
Hochester v De La Tour
Anticipatory breach
D agreed to employ C but then wrote C saying his services were no longer required. D was liable for breach and removed C’s obligations.
White and Carter (Councils) Ltd v McGregor
Anticipatory breach
C can affirm the contract (perform then sue for contract price) if:
- it can perform without the cooperation of the defaulting party, and
- it has legitimate interest in doing so
