1. Performance and Breach Week 1

2. LS372 20083 Performance and Breach  What is ‘performance’?  Termination by Agreement  Failure of a Contingent Condition

3. LS372 20084 LS372 unit structure  Weeks 1 - 3 Termination  Weeks 4 & 5 Remedies  Weeks 6 - 10Vitiating Factors  Weeks 11 & 12 Illegality  Week 13Review

4. LS372 20085 Termination  Week 1 - Performance, Termination by Agreement, Failure of Contingent Condition  Week 2 - Termination for Breach, Repudiation & Delay  Week 3 - Consequences of Termination, Restrictions

5. LS372 20086 Remedies  Week 4 - Measure of Damages & Limitations on Damages  Week 5 - Liquidated Damages, Debt, Specific Performance & Injunctions

6. LS372 20087 Vitiating Factors  Week 6 - Mistake  Week 7 - Misrepresentation  Week 8 - Duress & Undue Influence  Week 9 - Unconscionability  Week 10 - Recission & Remedies

7. LS372 20088 Illegality  Week 11 - Types of Illegality  Week 12 - Consequences of Illegality

8. LS372 20089 Performance  Terminology Discharge of a contract - broad meaning. Contract is brought to an end  By performance  By agreement  Through breach  Through frustration  By operation of law Termination of a contract - contract is brought to an end by one party for breach etc

9. LS372 200810 Performance  Standard of Performance Exact Performance Required  Re Moore and Landauer  Cutter v Powell Exceptions to Exact Performance Severable contracts De minimus non curat lex doctrine Substantial performance Acceptance of partial performance Obstruction of performance Methods of Performance

10. LS372 200811 Exceptions to Exact Performance  Severable Contracts Govt of Newfoundland v Newfoundland Railway Co Performance of a severable part of the contract may be enforceable, even if there has been a failure to discharge obligations as a whole

11. LS372 200812 Exceptions to Exact Performance  De Minimus Non Curat Lex  The law is not concerned with small things There once was a lawyer named Rex Who had a very small sex When charged with exposure He replied with composure ‘de minimus non curat lex’ Tramways Advertising v Luna Park Shipton, Anderson v Weil

12. LS372 200813 Exceptions to Exact Performance  Substantial Performance Performance less than enough to invoke de minimus rule Considered enough to justify enforcement of contract Court will look at what is needed to cure the defect If proportionately small, they may require other party to perform, but allow them damages for defect Similar to claim for breach, but does not allow innocent party to rescind Cases are inconsistent and confusing  Hoenig v Isaacs  Bolton v Mahadeva

13. LS372 200814 Exceptions to Exact Performance  Jacob & Youngs v Kent

14. LS372 200815 Exceptions to Exact Performance  Partial Performance Court infers agreement between parties for partial performance Other party obtained benefit Agreed to accept and pay for benefit obtained Had a choice whether to accept  Sumpter v Hedges

15. LS372 200816 Exceptions to Exact Performance  Obstruction Where one party prevents the other party from performance of their duties Innocent party may claim damages and/or quantum meriut Innocent party won’t be able to claim contract price

16. LS372 200817 Methods of Performance  Demand - performance required whether other party demands it or not.  Tender of performance - offer to perform  ‘ready willing and able’ to perform  Tender of performance can be dispensed with - eg repudiation

17. LS372 200818 Termination  Express Term of the Contract  Subsequent Agreement  Implied Agreement

18. LS372 200819 Termination  Express Term of the Contract Procedure must be followed  Subsequent Agreement Does the new agreement terminate the old one or vary it? Concut v Worrell Rules of formation apply to subsequent agreement Consideration - is the original agreement executory or executed? Has one party fully performed?  Deed of Release  Accord & Satisfaction

19. LS372 200820 Termination  By Implied Agreement Crawford Fitting v Sydney Valve Enduring Contract - no time limit Commercial agreements - court is more likely to imply a term for termination at will Reasonable notice must be given “to enable the parties to bring to an end in an orderly way a relationship … so that they will have a reasonable opportunity to enter into alternative arrangement and to wind up matters which arise out of their relationship.”

20. LS372 200821 Contingent Conditions  Terminology Promissory - condition of the contract Not promising the event will occur - contingent condition McTier v Haupt

21. LS372 200822 Contingent Conditions  Formation of contract  Performance of contract Bias in favour of Performance of Contract

22. LS372 200823 Contingent Conditions  Automatic Termination  Right to Terminate Bias in favour of right to terminate  Suttor v Gundowda Event beyond the control of parties - termination may be automatic Event within control of parties - party must elect to terminate (even if neither party is in default re non-fulfilment)

23. LS372 200824 Contingent Conditions  Election to terminate - see also week 3  Unequivocal communication  Time limit  Reasonable time  Election to terminate is irrevocable

24. LS372 200825 Contingent Conditions  Duty to Cooperate - see also LS371 topic 11 Duty of Good Faith  Honest  Reasonable - Perri v Coolangatta

25. LS372 200826 Contingent Conditions  Loss of Right to Terminate Affirmation Waiver Estoppel  See also week 3

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