IN THIS LECTURE DR ERNEST OWUSUDAPAA OF FACULTY OF LAW KNUST, KUMASI ( CONTACT: +233574602820)DISCUSSES DISCHARGE BY PERFORMANCE
The difficulty of exposition of discharge by performance or by breach is that performance and breach are in reality mirror images of one another, and are to be construed in the context of terms of the contract (Semester 1).

(i) If the contractual obligations are entire they must be performed precisely and exactly.
Often the case in sale of goods contracts

Re Moore and Co and Labour and Co. [1921] 2 KB 519

Pl. agreed to buy specific quantity of fruit in cases of 30 tins each. Correct quantity overall delivered but in cases of 24. Buyer entitled to reject.

Rare in case of contracts for services

Bolton v Mahadeva [1972] 2 AII ER 1322

Pl. agreed to install a central heating system in defendant’s house for lump sum of £560. Installed system which heated house inadequately and gave off fumes. Def. entitled to refuse to pay.

See also Cutter v Powell [1795] 6 Term Reports 320.

(ii) Substantial Performance (mirror image – breach of warranty)

If obligations not entire, then C/T been substantially injured party cannot treat himself as discharged from obligation to pay, but will have right of set off for any loss sustained by reason of incomplete performance.

ie. injured party has no right to repudiate for breach of condition but does have right to compensation for breach of warranty.

Substantial performance usually established if actual performance not far short of that required and cost of remedying defects not too great in proportion to overall contract price.

Dakin & Co. Ltd v Lee [1916] I KB 566

Pl. builders contracted to carry out repairs to defendant’s house for £1,500. Underpinning of wall was 2 feet instead of 4 feet thick; 4” rather than 5” columns used; joists over bay window not bolted as stipulated. Pl. entitled to contract price less £80 necessary to rectify defects.

(iii) Partial Performance (Mirror image – breach of condition)

Performance falls short of substantial performance i.e. breach of condition nut pl. may claim reasonable sum (on Quantum Meruit basis) for work done provided def. accepts the performance.

Sumpter v Hedges [1898] 1 QB 673

Pl. agreed to build on defendant’s land for £565. Did part of work and abandoned C/T. Def. completed buildings himself, using materials left on site by pl. Pl. entitled to cost of materials because def. had choice over use. Not entitled to claim for work done; def. had no choice whether accepted or not.




(iv) Partial of Performance

If plaintiff prevented from performing by default of other party may recover either damages for breach of contract or reasonable sum on Quantum Meruit for work already done.



Planché v Colburn [1831] 8 Bing 14

Pl. agreed to write on Costume and Ancient Amour for series to be published by def. was to be paid £100 upon completion. Collected materials and wrote part of book. Def. abandoned series. Pl. recovered 50 guineas quantum meruit basis.