contract law

• what is performance in discharge of contract?

  performance in discharge of contract means that performance must be exact an complete
• key cases for performance

  cutter v powell- A sailor had contracted to serve on a ship travelling from Jamaica to Liverpool. He was paid 30 guineas for the voyage, payable when the ship arrived in Liverpool, but he died during the journey. His widow sued for his wages. ​​

  Held: Claim was unsuccessful​​

  Ratio: Performance must be exact and complete, and because he died during the return. The sailor's performance was not as the contract stated.
• second case for performance

  RE moore v landuaer-C ordered 300 tins of peaches in batches of 30 tins. The total quantity arrived but in batches of 24. C rejected the whole consignment and refused to pay​​

  Held: C was successful​

  Ratio: performance must be exact and complete and because the peaches were not as per the order - D’s performance was neither
• what is mitigation of harshness for performance

  substantial performance

  partial performance

  vicarious performance( third party)

  time based performance(time is of the essence)
• what is substantial performance

  this occurs when work agreed is almost finished, courts order money to be paid but deducts the amount needed to fic the minor defect

  this only applies for breach of warranty and not breach of condition

  what is substantial performance is decided on case to case basis
• what is the key case for substantial performance?

  Hoenig v Isaacs- A decorator (C) was hired to work for £750. D paid £400 but, because of a defect that would cost around £50 to fix, he refused to pay the remaining £350. C sued. ​​

  Held: C won. ​​

  Ratio: substantial performance allows for substantial payment. The CA withheld £56 from C and ordered D to pay the balance.
• what is partial performance

  partial performance occurs when only some of the work has been done, but where the degree to which the obligations have been fulfilled is less than what would be required for substantial performance.

  the contract must be paid on a quantum meruit basis.
• key case for partial performance

  sumpter v hedges-A builder (C) was hired to build a house and stables for D. C ran out of money and failed to complete the job. D got the work completed by someone else using the materials that C had left behind. C sued for payment of the work he had completed. ​

  Held: C lost (and was not allowed to cover the costs of the work he had done). ​

  Ratio: D had no choice but to complete the work – C was entitled only to the cost of the materials used by the D as D did not have to use these. ​
• vicarious performance


  usually occurs when a third party performs the contractual duty of another party

  The exception to the rule is if the service contracted for relies on the skill or judgment of the party of the essence of the contract then the other party can insist on personal performance
• key case for vicarious performance

  Edwards v Newland- C chose carefully the warehouse that would store his furniture. The warehouse sub-contracted the work to a third party and C's furniture was damaged. ​

  Held: C won​

  Ratio: this contract could not be performed vicariously. The personal skill and care of the warehouseman was 'of the essence'. The transfer of work to another was not allowed.
• divisible contracts 


  If each part can be discharged separately, then non-completion of one part does not amount to a whole breach. ​

  A party would sue for breach of part of the contract but cannot sue for failing to perform the entire contract.
• key case for divisible contracts

  Taylor v Webb-Premises were leased to a tenant and a term required the landlord to keep the premises in 'good repair'. The landlord failed to attend and make the relevant repairs, so the tenant refused to make payment of rent. ​

  Held: C won – the tenant was required to pay rent. ​

  Ratio: The obligations of the landlord were divisible – 1. Lease the premises and 2. Maintain and repair.
• breach of contract 


  failure to fulfil contractual obligations

  occurs when one party performs defectively or differently from what is agreed (actual breach)
• what is anticipatory breach 


  this is where one party informs in advance that they will not be performing as agreed
• case one for breach of contract

  hocher v DE la tour-C was hired as a courier due to start work 2 months later. A month later, D wrote to C cancelling the contract. ​

  Held: C won​

  Ratio: C could sue as soon as he learned the contract was cancelled. Anticipatory breach does not require C to wait until the contract was due to start.
• case two for breach of contract

  avery v bowden-D was contracted to load cargo onto a ship. When it became clear that he could not complete, C could have sued, but waited in the hope that the contract could be completed. War broke out and the contract was frustrated. C could not recover his money. ​

  Held: The contract was frustrated (ended through war) ​

  Ratio: delaying legal action for anticipatory breach might mean the contract is ended through frustration.
• repudiatory breach


  occurs when a party commits a breach of contract that is sufficiently serious which entitles the innocent party to repudiate the contract
• case one for repudiatory breach

  roger v parish-On delivery, a new Range Rover was found to have numerous defects (including in the engine and gearbox). C drove the car for 6 months and 5,500 miles whilst constantly complaining to D. After 6 months, there were still faults remaining and C repudiated​

  Held: C won​

  Ratio: Repudiation must take place before C accepts the goods. He had not ‘accepted’ the car in this case (see also Clegg v Olle Anderson)​
• case two for repudiatory breach

  clegg v olle Anderson-C bought a yacht with a keel that was too heavy. He complained on delivery and 6 months later was given the info he needed to decide whether or not he wanted to keep the vessel. 3 weeks later he tried to reject the yacht.​

  Held: C could still reject​

  Ratio: Repudiation must take place before C accepts the goods. He had not ‘accepted’ the yacht as 3 weeks following receipt of the information needed was held to be reasonable to reject within (see also Rogers v Parish)
• what is an offer

  an offer is a willingness to enter into stated terms

  the terms must be definitive
• main case for offer

  Gibson v Manchester city council
• what is a bilateral offer

  this requires both the offeror and the offeree to do something. both have an obligation
• what is a unilateral offer 


  an agreement to a exchange for performance.
• what is an invitation to treat

  is an opportunity to negotiate or form an offer

  its not an offer, therefore cant be accepted
• what must be there for an agreement to be made in contract law

  
  

  there must be an offer and acceptance

  
  

  The courts will use the 'mirror image rule'. If the offer is exactly matched by the acceptance, then the courts will be satisfied there is an agreement between the two parties.
• invitation to treat- advertisement

  Generally an advertisement cannot be an offer and is usually considered to be an invitation to treat​

  However, if the advertisement is a unilateral offer or has certain terms that need to be fulfilled it can be considered as an offer.

  partridge v crittenden-Facts: Mr Crittenden placed an advertisement in stating "Bramblefinch cocks, bramblefinch hens, 25s". He was prosecuted for 'offering for sale' a wild bird under the Protection of Birds Act 1954. ​

  Held: D not guilty​

  Ratio: Mr Crittenden had not made a legal offer but instead an invitation to treat.
• cases for invitation- unilateral offer 


  carlil v carbolic smoke ball-The company (Carbolic Smoke Ball Co) advertised a patent medicine, 'the smoke ball'. The advertisement stated that if used correctly and still got flu, then the company would pay them £100. ​

  The advert included the wording "£1000 is deposited with the Alliance Bank, shewing our sincerity in the matter."​

  Mrs Carlill contracted influenza after correct use of the smokeball and Carbolic Smoke Ball refused to pay out
• Invitation to treat

  A proposal to enter into a contract, not an offer
• Cases for invitation to treat

  • Leftkowitz v Great Minneapolis Surplus Store
• Leftkowitz v Great Minneapolis Surplus Store

  • D placed an advertisement in the paper for the sale of fur, stating that it would be sold on a 'first come first served' basis
  • C was the first to respond to the advertisement
  • D refused to sell on the basis that it was a 'house rule' to sell only to female customers
  • C brought a claim for breach of contract, contending that the defendant was bound by its 'first come first served' promise
• Held: Liable
• Ratio

  A binding obligation on the D arose from the specific language of the advertisement. A performance had been promised in return for a performance which was requested
• goods in shops/windows/shelfs

  goods in a shop window or on a shelf are invitation to treat even when they put it in their baskets. it becomes an offer when the customer presents them to the cashier
• main cases for invitation to treat- display of goods

  pharmaceutical society of GB v boots- Facts: Boots were charged with selling controlled pharmaceutical products other than under the supervision of a pharmacist. The shop was a self-service shop where the items that had to be sold by a pharmacist were on the shelf. ​

  Held: Ds not guilty​

  Ratio: The goods on a shelf were an invitation to treat. The customers make the offer at the till (in which a registered pharmacist would accept).
• another main case for invitation to treat- display of goods

  fisher v bell-Facts: A shopkeeper displayed a flick-knife with a price tag in his window for sale. He was charged with offering it for sale which is an offence under the Offensive Weapons Act 1959. ​

  Held: D not guilty​

  Ratio: The display of goods in a window is an invitation to treat and therefore had not been offered for sale.
• request for information

  its not an offer, its an invitation to treat as its a willingness to negotiate

  case:

  Harvey v Facey
• what are the 5 ways in which an offer can be terminated?

  • revocation
  • rejection
  • counter offer
  • lapse of time
  • death
• revocation


  revocation means to withdraw the contract

  an offer can be revoked any time before the offeree accepts

  revocation must be communicated to the offeree before it takes place
• cases for revocation

  shuey v us

  dickson v dodds

  errington v errignton

  bryne v van ti hoven
• termination of an offer- rejection

  once an offer is rejected it cant be accepted by the same person who rejected the offer

  rejection ends an offer

  rejection must be communicated