Performance

Question 1

What are the three ways a contract can be discharged?

Answer 1

Performance
Breach
Frustration

Question 2

What is performance?

Answer 2

Performance is the usual method of discharging a contract as both parties have done what they have agreed to do.

The strict rule of discharge by performance is that performance must be complete and exact. (Cutter v Powell)

Question 3

What are the five types of performance?

Answer 3

Substantial performance
Divisible Contracts
Vicarious Performance
Tender of Performance
Prevention of Performance

Question 4

What is substantial performance + cases?

Answer 4

If a party has done substantially what was required under the contract, there must be payment for what has been done. (Dakin v Lee)

Where the cost of putting them right = less than the amount deducted there is substantial performance (Hoenig v Isaacs)

No substantial performance (Bolton v Mahadeva)

Question 5

What are divisible contracts?

Answer 5

This is where the contract is interpreted as being made up of various parts which can be discharged separately, so non-completion of one part does not result in a breach of the whole contract (Taylor v Webb).

Question 6

What is vicarious performance?

Answer 6

Where another person carries out the contract instead of the original party contracted with (British Waggon Co v Lea and Co).

If a contract is clearly personal in nature, it cannot be performed by sub-contracting it to another (Edwards v Newland)

Question 7

What is tender of performance?

Answer 7

Where a party is willing to perform their obligations, and tries to tender performance but the other party does not accept the performance, then the party seeking to tender performance is discharged from the contract, and the non-accepting party is liable in damages for non-acceptance (Startup v Macdonwald)

Question 8

What is prevention of performance?

Answer 8

If a party is prevented from performance, the innocent party will be awarded a sum of payment based on quantum merit. This means that the innocent party will be awarded a reasonable sum of money to be payed for the benefit they have provided to the other party, when the amount due to is not stipulated on the contract. (Planche v Colburn)