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Flashcards in Performance and Breach Deck (23)
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Treital's definition of breach

A breach of contract is committed when a party without lawful excuse fails or refuses to perform what is due from him under the contract, performs defectively or incapacitates himself from performance

1

The Sale of Goods Act 1979, section 11

(2) a buyer may treat a breached condition as ground for repudiation or may elect to treat it as a breach of warranty
(3) breach of condition mean repudiation is available; breach of warranty means only damages; election does not make a condition a warranty it is a matter of construction

2

SOGA 1979 Section 12-15

Recognises and implements the difference between conditions and warranties

3

SOGA 1979 15A

A non-consumer can only get damages where a breach is so slight it would be unreasonable to reject the goods

4

Hong Kong Fir Shipping (1962) CA

Treital views this as a landmark case; ship must be seaworthy; ruled this is an innominate term where only actionable where the result of the breach was so fundamental it goes to the root of the contract/substantially deprives of the benefit (Lord Diplock); more flexible but less certainty

5

Bunge Corp v Tradax (1981) HL

There is an assumption in a contract where "time is of the essence" that time is always a condition

6

The Mihalis Angelos (1971)

Valued certainty over flexibility and rejected to apply the in nominate term rule; expected readiness to load clause was condition regardless of effect

7

Wickman v Schuler (1974) HL

Contract elected visiting factories as a condition but court says no on construction

8

Lombard V Butterworth (1987)

Time is of the essence always a term despite magnitude of the breach

9

Bettini v Gye (1876)

Opera singer 3 days late for rehearsal

10

Pussard v Spiers (1876)

Opera case is breach when a week late into season

11

Vital v Norelf (1996)

Exceptional circumstance where silence amounted to acceptance of rescission; "silence was pregnant with meaning" as conduct explicitly showed acceptance

12

Cutter v Powell (1795)

Second mate written agreement was an entire obligation so no part payment allowed

13

Simon v Hedges (1898)

Builder only reimbursed martial costs not cost for half of labour

14

Hoeing v Isaacs (1982) CA

The decoration work was defective but only allowed cost of repairs (£55) off price of complete contract

15

Bolton v Mahdeva (1972) CA

Defective central hearing was not substantial performance so no payment

16

Law Commission on Substantial Performance

Felt Bolton should receive some payment but government disagreed as it is the house owners only weapon against the builder

17

White & Carter v McGregor (1962)

Bun advertisements, no effort to mitigate but still must perform; Lord Reid considered no legitimate interest concept

18

The Alaskan Trader (1984)

An exceptional circumstance where no legitimate interest in keeping the contract open, difficult to distinguish from White & Carter v McGregor; should there be evidence given on how to mitigate loss?

19

Frost v Knight (1872)

Promised to marry when dad died but changed mind before death; able to repudiate from moment of declaration did not need to wait until day of performance

20

Woodarin v Wimpey (1980)

Necessary to look at conduct as an indicator of repudiation

21

UCTA 1977

6(1) section 12 of SOGA can not be excluded against
6(2) nor can section 13 for consumers and where it would be unreasonable in commercial contracts

22

Rice v Great Yarmouth BC

Courts reluctant to give effect to term covering "any breach"