Performance and Breach Week 1

LS Performance and Breach  What is ‘performance’?  Termination by Agreement  Failure of a Contingent Condition

LS LS372 unit structure  Weeks Termination  Weeks 4 & 5 Remedies  Weeks Vitiating Factors  Weeks 11 & 12 Illegality  Week 13Review

LS Termination  Week 1 - Performance, Termination by Agreement, Failure of Contingent Condition  Week 2 - Termination for Breach, Repudiation & Delay  Week 3 - Consequences of Termination, Restrictions

LS Remedies  Week 4 - Measure of Damages & Limitations on Damages  Week 5 - Liquidated Damages, Debt, Specific Performance & Injunctions

LS Vitiating Factors  Week 6 - Mistake  Week 7 - Misrepresentation  Week 8 - Duress & Undue Influence  Week 9 - Unconscionability  Week 10 - Recission & Remedies

LS Illegality  Week 11 - Types of Illegality  Week 12 - Consequences of Illegality

LS Performance  Terminology Discharge of a contract - broad meaning. Contract is brought to an end  By performance  By agreement  Through breach  Through frustration  By operation of law Termination of a contract - contract is brought to an end by one party for breach etc

LS Performance  Standard of Performance Exact Performance Required  Re Moore and Landauer  Cutter v Powell Exceptions to Exact Performance Severable contracts De minimus non curat lex doctrine Substantial performance Acceptance of partial performance Obstruction of performance Methods of Performance

LS Exceptions to Exact Performance  Severable Contracts Govt of Newfoundland v Newfoundland Railway Co Performance of a severable part of the contract may be enforceable, even if there has been a failure to discharge obligations as a whole

LS Exceptions to Exact Performance  De Minimus Non Curat Lex  The law is not concerned with small things There once was a lawyer named Rex Who had a very small sex When charged with exposure He replied with composure ‘de minimus non curat lex’ Tramways Advertising v Luna Park Shipton, Anderson v Weil

LS Exceptions to Exact Performance  Substantial Performance Performance less than enough to invoke de minimus rule Considered enough to justify enforcement of contract Court will look at what is needed to cure the defect If proportionately small, they may require other party to perform, but allow them damages for defect Similar to claim for breach, but does not allow innocent party to rescind Cases are inconsistent and confusing  Hoenig v Isaacs  Bolton v Mahadeva

LS Exceptions to Exact Performance  Jacob & Youngs v Kent

LS Exceptions to Exact Performance  Partial Performance Court infers agreement between parties for partial performance Other party obtained benefit Agreed to accept and pay for benefit obtained Had a choice whether to accept  Sumpter v Hedges

LS Exceptions to Exact Performance  Obstruction Where one party prevents the other party from performance of their duties Innocent party may claim damages and/or quantum meriut Innocent party won’t be able to claim contract price

LS Methods of Performance  Demand - performance required whether other party demands it or not.  Tender of performance - offer to perform  ‘ready willing and able’ to perform  Tender of performance can be dispensed with - eg repudiation

LS Termination  Express Term of the Contract  Subsequent Agreement  Implied Agreement

LS Termination  Express Term of the Contract Procedure must be followed  Subsequent Agreement Does the new agreement terminate the old one or vary it? Concut v Worrell Rules of formation apply to subsequent agreement Consideration - is the original agreement executory or executed? Has one party fully performed?  Deed of Release  Accord & Satisfaction

LS Termination  By Implied Agreement Crawford Fitting v Sydney Valve Enduring Contract - no time limit Commercial agreements - court is more likely to imply a term for termination at will Reasonable notice must be given “to enable the parties to bring to an end in an orderly way a relationship … so that they will have a reasonable opportunity to enter into alternative arrangement and to wind up matters which arise out of their relationship.”

LS Contingent Conditions  Terminology Promissory - condition of the contract Not promising the event will occur - contingent condition McTier v Haupt

LS Contingent Conditions  Formation of contract  Performance of contract Bias in favour of Performance of Contract

LS Contingent Conditions  Automatic Termination  Right to Terminate Bias in favour of right to terminate  Suttor v Gundowda Event beyond the control of parties - termination may be automatic Event within control of parties - party must elect to terminate (even if neither party is in default re non-fulfilment)

LS Contingent Conditions  Election to terminate - see also week 3  Unequivocal communication  Time limit  Reasonable time  Election to terminate is irrevocable

LS Contingent Conditions  Duty to Cooperate - see also LS371 topic 11 Duty of Good Faith  Honest  Reasonable - Perri v Coolangatta

LS Contingent Conditions  Loss of Right to Terminate Affirmation Waiver Estoppel  See also week 3

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