Professional Documents
Culture Documents
As a general rule, only the parties to the contract can acquire rights and incur liabilities under it
CASE: Beswick v Beswick [1968] CASE: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988)
No right of action in contract exists against a person who is not a party to a contract (but a third party who knowingly and intentionally induces a breach of contract may commit a tort)
CASE: Lumley v Gye [1843-60]
Methods of Discharge
Discharge
Performance
Agreement
Frustration
Operation Of law
Breach
Virtue of term
Lapse of time
Types of Performance
Types of Performance
Discharge by Performance
Two Types of Performance
1. Actual Performance The parties must carry out as closely as practicable the terms of the contract CASE: Shipton, Anderson & Co v Weil Brothers & Co [1912] CASE: Re Moore & Co Ltd and Landauer [1921]
Discharge by Performance
2. Partial Performance Generally, payment does not automatically follow
unless the contract is divisible (a matter of construction)
CASE: Cutter v Powell (1795)
if there has been free and willing acceptance of partial performance by the party receiving the benefit there has been substantial performance and the cost of rectification is small
CASE: Hoenig v Isaacs [1952]
Discharge by Agreement
Mutual Discharge
where both parties abandon their original agreement while the contract is still executory
Release
where one party has performed their obligations and there is a unilateral discharge of the agreement
Waiver
where one party leads the other party to reasonably believe that strict performance will not be insisted upon
Discharge by Agreement
Substitution
where the parties wish to continue with a contractual relationship but on terms differing from those in the original agreement, a new agreement can be substituted
where one party has performed their obligations and the defaulting party is relieved of their obligations by doing something different to that which they were bound to do under the original contract
Discharge by Frustration
The doctrine of frustration offers exceptions to the doctrine of absolute liability. To be operative, frustration can only arise where:
an unforeseen event outside the control of the parties has significantly changed the obligations of the parties; neither party caused the supervening event; neither party contemplated the supervening event; and
it would be unjust to hold the parties to their original contract. CASE: National Carriers v Panalpina (Northern) Ltd [1981]
Discharge by Frustration
Cases involving this doctrine fall into 5 categories: Physical impossibility because of destruction of the subject matter
CASE: Taylor v Caldwell (1863)
Physical impossibility under a contract of personal services Change in the law rendering performance impossible
CASE: Horlock v Beal [1916]
Discharge by Frustration
Discharge by Frustration
The effect of frustration is to discharge the contract but only as to the future
CASE: Fibrosa Spolka Akcyjina v Fairburn Lawson Combe Barbour Ltd [1943]
Frustrated Contracts Act 1959 allows expenses incurred before frustration to be recovered
Discharge by Frustration
bankruptcy; material alteration; merger; death if the contract is for personal services; and discharge by lapse of time
CASE: Ballas v Theophilos (No 2) (1957)
Discharge by Breach
Where one party fails to perform their obligations as agreed, they are liable for breach of contract.
Breach may be: Actual breach where a party fails to perform at the time required by the contract; or Anticipatory breach where a party threatens not to perform prior to the time required by the contract
CASE: Foran v Wright (1989)
The effect of breach depends on the importance of the term that is broken.
The remedies available to the injured party will depend on the nature of the breach.