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Discharge I (Discharge by agreement (Agreed as part of contract (Agreed…

- - - - On a specified notice period (sometimes after a minimum contractual term)
      - Upon the occurrence of agreed events
      - Upon agreed types of breach e.g. material breach
        
        The other party commits a material breach of any other term of this agreement and that breach is irremediable - of if is remediable, fails to remedy within 30 days after being notified in writing to do so
        
        Lower standard than Hong Kong Fir
        
        Parties' own choice to exit on agreed event
        
        Right to damages still flows from breach so not right to damages for loss of performance of entire contract unless also a repudiatory breach
      - Note - if notice provisions are not specified then all contracts contain an implied term that they can be terminated on reasonable notice
  - - - If wholly executory - obligations on both parties outstanding then mutual waiver - The Hannah Blumenthal
      - If partially performed then by deed or accord and satisfaction - Pinnel's Case
- - - - Acceptance of partial performance - Sumpter v Hedges
      - Substantial performance
        
        Hoenig v Isaacs
        
        Bolton v Mahadeva
      - Divisible obligations - Rose & Frank v Crompton Bros
    - - An obligation on a party to perform an ordinary obligation can be discharged by a third party - British Waggon Co v Lea
      - But not if the obligation amounts to a contract of "personal service" - Robson v Drummond
- - - - Always as a matter of common law where "repudiatory breach" has occurred
        
        Objective intention demonstrated to abandon the contract and refuse to perform - Eminence Property Developments Ltd v Heaney, or
        
        Anticipatory breach - before time for performance of contract one party informs the other they will not or cannot fulfil their obligation to perform the contract - Hochester v De la Tour
        
        Repudiatory breach - process and effect
        
        The right of election = repudiatory breach does not amount to automatic discharge - terminating party must elect
        
        Terminate - terminating parties are discharged from further performance of the remainer of the contract (but accrued rights remain in place) - right ot claim loss of bargain damages loss of performance of whole contract
        
        Notification of election to terminate is required - accept the breach by notice or clear and unequivocal conduct - Vitol v Norelf (The Santa Clara)
        
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        "An unaccepted termination is a thing writ in water" - Howard v Pickford Tool, per Asquith LJ
        
        Affirm and continue with performance - right to terminate lost, right to damages remains but only loss flowing directly from breach
        
        Process
        
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        Why affirm - customers
        
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        Why affirm - suppliers
        
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        Dangers of affirmation
        
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        Limits to affirmation
        
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        Damages
        
        Termination for repudiatory breach = damages for loss of performance of contract as a whole
        
        Affirmation = actual damages flowing from breach in question
        
        Notes - damages are subject to remoteness, mitigation etc.
        
        Breach of a condition either...
        
        A term defined or construed as always being a condition, or
        
        What is a condition?
        
        Term defined as a condition by statute, by parties, or previous judicial decision
        
        Term construed as a condition by the court - goes to the root of the contract - Poussard v Spiers
        
        Innominate term treated as a condition because breach meets Hong Kong Fir test
        
        An innominate term which is to be treated as a condition because of the effect of the breach - Hong Kong Fir Shipping test
        
        Note - warranty = damages only - not recission
        
        "Deprive the injured party of substantially the whole benefit of the contract" - strictly applied - high threshold - Telford Homes v Ampurius
      - Agreed termination for breach clauses