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by
performance,
1. PERFORMANCE
THE GENERAL RULE
The general rule is that the parties must perform
precisely all the terms of the contract in order to
discharge their obligations.
For example, in contracts for the sale of goods, s13
Sale of Goods Act 1979 imposes the condition that the
goods must correspond with the description. The
precise requirement of s13 was illustrated in:
D) SUBSTANTIAL PERFORMANCE
When a person fully performs the contract, but subject
to such minor defects that he can be said to have
substantially performed his promise, it is regarded as
far more just to allow him to recover the contract price
reduced by the extent to which his breach of contract
lessened the value of what was done, than to leave him
with no right of recovery at all.
E) TENDER OF PERFORMANCE
2. AGREEMENT
The general rule is that what has been created by
agreement may be extinguished by agreement.
An agreement by the parties to an existing contract to
extinguish the rights and obligations that have been
created is itself a binding contract, provided that it is
made under seal or supported by consideration. Where
the agreement for discharge is not under seal, the legal
position varies according to whether the discharge is
bilateral or unilateral:
BILATERAL DISCHARGE
Bilateral discharge occurs whenever both parties to the
contract have some right to surrender, e.g where there
has been non-performance by either party, or is partly
performed by one or both parties.
The agreement by the parties to discharge their
contract may be designed to have one of several
effects:
ACCORD AND SATISFACTION: The parties may
intend to rescind their present agreement and
nothing more. Where there is an agreement
mutually to release the other from the obligations
UNILATERAL DISCHARGE
Unilateral discharge takes place where only one party
has rights to surrender. Where one party has entirely
performed his part of the agreement, he is no longer
under obligations but has rights to compel the
performance of the agreement by the other party.
For unilateral discharge, unless the agreement is under
seal, consideration must be furnished in order to make
the agreement enforceable, i.e. accord and satisfaction.
3. BREACH
A failure to perform the terms of a contract constitutes
a breach. A breach which is serious enough to give the
4. FRUSTRATION
The doctrine of frustration operates in situations where
it is established that due to subsequent change in
circumstances, the contract is rendered impossible to
perform, or it has become deprived of its commercial
purpose by an event not due to the act or default of
either party.
EXAMPLES OF FRUSTRATION
the government
E) SUPERVENING ILLEGALITY
may
frustrate a
EFFECTS OF FRUSTRATION
The Law Reform (Frustrated Contracts) Act 1943 was
passed to provide for a just apportionment of losses
where a contract is discharged by frustration.
(A) RECOVERY OF MONEY PAID
Money paid before the frustrating event is recoverable,
and Money payable before the frustrating event ceases
to be payable, whether or not there has been a total
failure of consideration. If, however, the party to whom
such sums are paid/payable incurred expenses before
discharge in performance of the contract, the court
may award him such expenses up to the limit of the
money paid/payable before the frustrating event.
Section 2(4) provides that the Act does not apply where
wholly performed contractual obligations can be
severed from those affected by the frustrating event.
Section 2(5) provides that the Act does not apply to:
Contracts containing a provision to meet the case of
frustration; Charterparties (except time charterparties
or charterparties by demise); Contracts for the carriage
of goods by sea; Contracts of insurance; Contracts for