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End of Contract (Partial Performance (Partial Performance of Terms (If…
End of Contract
Partial Performance
Partial Performance of Terms
If they breach one or more terms
Depends if term is condition or warranty - condition is critical and fundamental
[Associated Newspapers vs Bancks (1951)]
Condition
Can terminate ad sue for damages [Poussard v Spiers & Pond]
Warranty
Cannot terminate but can sue for damages [Bettini v Gye]
If unclear if condition or warranty
Intermediate Term
Wait for breach to determine
If serious
Condition
Hong Kong Fir Shipping v Kawasaki Kisen Kaisha
If not serious
Warranty
Cehave NV v Bremer Handelsgesellschaft mbH
Partial Performance of Contract
Performed contract partially - no rights [Cutter v Powell]
Exceptions
Substantial Perfomance
Contract has been performed substantially
Hoenig v Isaacs
Entitled to whole sum less cost of rectifications
New contract to accept partial performance
Acceptance of partial performance
Steele v Tardiani
Entitled to payment of actual value of work done
Divisible Contract
Contract consists of several subcontracts or phases
Frustration
Taylor v Caldwell
a contract is terminated as a result of frustration if
neither party caused the event
contract did not provide for the event
supervening event made performance of contract impossible
unjust to compel either party to proceed with contract
BUT contract becoming more expensive is NOT frustration
Davis Contractors v Fareham UDC
Conclusion for Frustration
According to Frustrated Contracts Act (FCA)
Deposits paid must be returned
Benefits conferred must be returned
(Courts will decide based on fairness)
New agreement to terminate
New contract to end previous contract (mutually agreed)
Just need any small consideration to form OAIC
Full performance by both parties
Everyone happy
Total failure to perform by one party
Breach of Contract (sue for damages)
actual performance is completely different to what they were required to do under the contract
prior to the time of performance they clearly indicate they will not be performing their obligations (anticipatory breach)
Made no effort to perform obligations