Performance

• Strict rule: Performance must be complete and exact. If one party doesn't exactly fulfil their obligations, the other party doesn't have to fulfil their obligations either - Cutter v Powell
• The strict rule can be avoided in 4 ways:

  1. Prevention of full performance
  2. Acceptance of part performance
  3. Divisible contracts
  4. Substantial performance
• 1. Prevention of full performance

  • If one party prevents the other from carrying out the contract, the innocent party can claim on a quantum meruit basis - Planche v Colburn
  • D prevents C from carrying out their obligations
• 2. Acceptance of part performance

  • There must be consent for this to apply and it has to be free from pressure
  • If the parties agree that the other doesn't have to complete the full contract, they must be paid on a quantum meruit basis
  • It is not considered to be consent if the innocent party has no option but to take the benefit of the work done - Sumpter v Hedges
• 3. Divisible contracts

  • If the contract has separate parts, this is a divisible contract
  • The contract must be clearly divided for this to work
  • Non-completion of one part doesn't breach the entire contract - Richie v Atkinson
• 4. Substantial performance

  • This is where you haven't completed all of your obligations but you have completed enough according to the courts - Darkin and Co v Lee
  • Payment must be completed for the appropriate work done on a quantum meruit basis - Hoenig v Isaacs
  • This does not apply if the contract is seen as a single transaction
  • If the work hasn't been substantially performed, the party who carried out the work will not be entitled to anything - Bolton v Mahadeva
• Whether time of performance is important

  • Some contracts explicitly state time, time is seen as a condition in the following circumstances;
  • 1. The parties expressly stated in the contract that 'time is of the essence' - Union Eagle v Golden Achievement
  • 2. In the circumstances, time of completion is critical for the contract
  • 3. One party hasn't performed on time, so the other party has insisted on another date of completion
• Remedies

  • Quantum meruit - C can claim for the work they have completed
  • Repudiation - The contract comes to an end
  • Specific performance - The court will specify what needs to happen for the dispute to be resolved
  • Damages - Compensation is awarded to C