1. Fraud, Discharge, Remedies

2. fraud Fraud omnia vitiate – fraud vitiates everything
Must be specifically pleaded and strictly proven
It can be presumed when consideration is woefully and shockingly inadequate
Can be rebutted by evidence
Makes a contract voidable – party must act timeously upon discovering it

3. Discharge of Contractual obligations and Remedies

4. Where a party is freed from performing his obligations under a contract
Hence there are no outstanding obligations under the contract.
There are 4 ways in which a contract can be discharged or terminated:

5. Discharge by agreement
Discharge by performance
Discharge by frustration
Discharge by breach

6. Discharge by Agreement
Contracts may be discharged/terminated by agreement just as they are created by agreement
This may be provided for by a termination clause in the contract
If the performance of the obligations under the contract are in the future and neither party has performed his obligations then the parties may agree that each be released from his obligations
Can also apply where parties are replacing an existing contract with a new one, or varying the terms of an existing one

7. Fish & Meat Co Ltd v Ichnusa Ltd – pg 98
Novation – agreement to substitute one of the parties or the terms of the contract.
Obligations under the old contract are discharged.
Japan Motors v Randolph Motors – pg 99

8. To successfully plead it:
Intention to substitute, which may be by words or conduct. Conduct must be clear and unambiguous
There must, in fact, be a substitution of the old with the new
Mutual consent – express or by conduct

9. Discharge by Performance
Performance is where one or both parties have fulfilled their obligations under the contract in accordance with the terms of the contract.
General rule is that performance must be exact and complete. Partial performance is no performance. E.g.:
Goods to be supplied under a contract must be of the right kind and of the right quantity. If it is not, the goods could be rejected
Money to be paid in cash must be in cash and not cheque. It will only be exact when the cheque is honoured
The effect of this (exact and complete performance) is to discharge a party/parties from any or further obligations under the contract

10. Time
Generally time is not an issue unless the parties expressly state so,
Or where the nature of the contract makes time of the essence, e.g., the supply of perishable goods

11. Exceptions
If the contract can be divided into several parts, complete performance of each part constitutes performance in respect of those parts, but the obligation to perform the rest remains.
Where party who is to benefit accepts part performance
Where the party who is to benefit prevents the other party from performing his obligations
Where there is substantial performance of the entire obligation, this can arise in situations where hardship would be occasioned otherwise. E.g., a carpenter contracted to produce 4 chairs, but who is able to produce 3. He will be paid for the 3 and discharged.

12. Discharge by Frustration
Frustration is where the performance of obligations under the contract becomes impossible as a result of events beyond the power and control of either party
Effect is to discharge the parties from the contract. No legal action can be taken against either.

13. Frustration can occur in the following ways:
Death of a party to the contract
Destruction of the subject matter, Taylor v. Caldwell: a contract to hire a hall for a musical show was frustrated because the hall was destroyed by fire through no the fault of the owner.
non occurrence of an event – where the performance is dependent on an event, Krell v. Henry: held that a contract to hire a room overlooking the proposed route of the coronation procession of King Edward VII was frustrated when the procession was cancelled due to the king’s illness. Purpose of the contract was to view the coronation, not just to hire a room.

14. Commercial purpose defeated
Government intervention, e.g. compulsory acquisition, change in law has made performance illegal
Where frustration will not apply:
Self induced events – Afrifa v Class Peters – pg 102
Where parties foresaw the frustration and made provision for it

15. Effects of frustration under the Contracts Act
All monies paid would be recovered, and all monies payable would cease to be payable
Where a party has incurred expenses, he may be allowed to recover or retain
If there is part performance, courts may sever parts of the contract as if it were a separate contract

16. Discharge by Breach
Where a party, without lawful reasons, and without consent of the other party fails to perform his side of the contract
Types of breach:
Total failure to perform
Anticipatory – where before the date of performance, party indicates his intention not to perform
Incomplete or defective performance

17. Effects of Breach:
Not all breaches will warrant discharge from the contract. Mostly fundamental and serious conditions will lead to a discharge
Where the other party has put himself in a position which makes it impossible to perform then the innocent party may be discharged and may sue for damages

18. Exercise
Red Army is a carpenter. He contracted with Early Steps Pre-School to construct tables and chairs for use of the toddlers of the school. Under the contract, he was to build a 100 chairs and tables over a period of 7 days. At a point when RA had constructed 80 chairs and 83 tables, he received an urgent message from his village that his relative had passed away. As the oldest son, he immediately left for the village, after advising the school proprietor of his predicament. He did not return till two weeks later and was told that someone else had completed the contract and the school intends to sue him for breach. Advise the parties?

19. break

20. Remedies for breach of contract
Once a breach has occurred, the innocent party may seek redress in accordance with the terms of the contract.
This may be by initiating a court action or arbitration.

21. There are several means of redress:
Damages
Specific performance
Injunction
Rescission
Rectification

22. Damages Awarded to compensate the innocent party for the breach
basis is to put the injured party in a position he would have been in, as far as money can, if the other party had performed his obligations
Case: Juxon-Smith v KLM Dutch Airlines- 110
Losses which are remote or cannot reasonably be linked to the breach cannot be paid for.

23. Damages may be general or special
General flows from the breach
Special – liquidated, verifiable and provable sums, e.g., lost income, expenses incurred etc
In determining damages, the court considers two things
Remoteness
Measure of damages

24. Remoteness of damages
Damages must not be remote – they must be proximate to the breach
Hadley v Baxendale – 111
2 tests established under this case:
Do the damages arise naturally from the breach?
Was it in the reasonable contemplation of both parties as being a probable result of the breach?
If the answer is yes, then damage is not remote and therefore recoverable

25. Horne v Midland Railway – 115
Note also page 116 on the essential principles

26. Measure of damages
This is the computation of how much money must be paid by the party in breach to the party suffering from the breach.
Arkoful v State Fishing Corp – 117
Note: An aggrieved party is required to mitigate his damages by taking reasonable steps
Attitsogbe v Posts and Telecommunications - 118

27. Societe Generale de Compensation v Ackerman – 118
Loss incurred
Wages due and payable
Value of any other benefit [one] is entitled to
Kisco Products (Gh) Ltd v Delmas America America Africa lines -119 to 120

28. Quantum Meruit An equitable remedy meaning “how much it is worth”.
Absent express terms the courts will assess an amount which is fair and reasonable
Skanska v Klimatechnik Engineering Ltd – “reasonable, ..just right; not too little or too much”

29. Applies where 122 Party is precluded from completing a contract
No concluded contract
122

30. Money had and Received Frafra v Boakye – 123
An order compelling a defendant to refund monies paid by or on behalf of the plaintiff to the defendant, the ground being that the defendant has not at all performed his contractual obligations.

31. Specific Performance An equitable and discretionary remedy
It is not automatically available to a party who prays for it
An order of the court directing a party to perform his contractual obligations
It will be available if damages will be inadequate, where the subject matter is of special interest and value to the plaintiff, where time is of the essence etc

32. The one seeking the remedy must come with clean hands and must not himself be tainted by fraud or crookedness.
IBM World Trade Corporation v Hasnem Enterprises Ltd – 127
Addo v Ghana Co-operative Marketing Association Ltd
Koglex v Field – “the relief of SP lies whenever agreement between parties have got to a stage that it would amount to fraud on the part of the other party to refuse to perform his side of the bargain”

33. Redco Ltd v Sarpong – 129
Where a third party has provided valuable consideration, and acquired an interest in the subject matter, and has no notice of the rights and interests of the plaintiff, then SP would not lie, but rather damages
Basare v Sakyi & Another - 131

34. Summary
The courts will therefore consider the following for the grant of SP:
Whether there is a contract
Where damages will not be an adequate remedy
Where the subject matter is unique and special
Whether time is of the essence
Part performance and clean hands
Is Remedy sought in a timely manner
Where conduct of Plaintiff makes it fair and equitable
Whether there is a bona fide purchaser for value without notice of any prior interest

35. Injunction
An equitable remedy directed at a party to refrain from doing a specified Act
Fish & Meat Co Ltd v Ichnusa Ltd - 132

36. Rescission
Remedy granted to one party to set aside a contract on grounds of fraud, misrepresentation, mistake.
Car & Universal Finance Co. Ltd v Caldwell – 135
SA Turqui & Bros v Lamptey – 136
Restoration of both parties to their original positions must be possible for this remedy to lie

37. Rectification
An equitable remedy where the court corrects or amends an error in a written contract to bring it into conformity with the actual agreement reached between the parties
it ensures that the written contract is in consonance with the oral or prior agreement
It is to restore the instrument to the true intention of the parties
Walker Property Investment (Brighton) Ltd v Walker - 137

38. Questions?