Exemption Clauses and Discharge (Allow, Release) of Contract by DATIUS DIDACE

Mzumbe University
From the SelectedWorks of DATIUS DIDACE(Amicus Curiae)
2020
EXEMPTION CLAUSES BY DATIUS

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DATIUS DIDACE
LLB-Mzumbe University
EXCLUSION(REMOVAL) OR EXEMPTION
(FREE OR RELEASE) CLAUSES
PREREFINED
BY;
DATIUS DIDACE.
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DATIUS DIDACE
EXCLUSION(REMOVAL) OR EXEMPTION (FREE OR RELEASE) CLAUSES

This is the term of a contract which inserted in the contract by one of the parties (usually the stronger
one) which intends to limit or extinguish liabilities in case of breach of the contract.
STANDARD FORM CONTRACT

A standard form contract (sometimes referred to as an adhesion or boilerplate contract) is a
contract between two parties, where the terms and conditions of the contract are set by one of the
parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed
in a "take it or leave it" position.
Examples of standard form contracts are insurance policies (where the insurer decides what it will
and will not insure, and the language of the contract) and contracts with government agencies (where
certain clauses must be included by law or regulation).
While these types of contracts are not illegal per se, there exists a very real possibility for
unconscionability. In addition, in the event of an ambiguity, such ambiguity will be resolved contra
proferentem against the party drafting the contract language.
SIGNED DOCUMENTS; -
The basic presumption is that any one who signs a contractual document has read and understood the
contents of the document and is there bound by the terms contained in that document.
Cases;-
i. Curtis v Chemical Cleaning [1951] 1 KB 805 Court of Appeal (kufua nguo ya harusi)
{Mlalamikaji alipeleka nguo ya harusi kwenye mashine ya kufulia, Akaambiwa na assistant

asaini form, akauliza hii form nayosaini ni ya nini? Akajibiwa kua ni kwaajili ya sisi
kutowajibika kwenye matatizo madogomadogo yanayoweza kuipata nguo, kumbe mlalamikaji
alifichwa ndani ya form kulikua na sentensi ilikua inatoa majukumu yote yatakayohusu
uharibifu wowote utakaotokea, baadae nguo ilirudishwa ikiwa imeharibika vibaya}
[assistant alimdanganya mlalamikaji hakumueleza kila kitu kilichoandikwa kwenye ile form,
malalamiko ya mlalamikaji yalikubaliwa]
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Facts;-
The claimant took her wedding dress to the cleaners. She was asked to sign a form. She asked the
assistant what she was signing and the assistant told her that it excluded liability for any damage to
the beads(drops). The form in fact contained a clause excluding all liability for any damage however
caused. The dress was returned badly stained (a mark that not easily removed).
Held:-
The assistant had misrepresented (a false statement) the effect of the clause and therefore could
not rely on the clause in the form even though the claimant had signed it. Consequently her claim was
successful.
ii. L'Estrange v Graucob [1934] 2 KB 394 Court of Appeal (kununuliwa kwa mashine ya
kuhifadhia sigara).
{Mlalamikaji alinunua mashine ya kuhifadhia sigara ili aitumie kwenye cafe, alisaini form
ambayo ilikua na maandishi madogo sana ambayo ilimbana, kua tatizo lolote litakalotokea
kwenye hiyo mashine haliwahusu waliomuuzia, hiyo mashine haikufanya kazi, hivyo
mlalamikaji alitaka airudishe.}
[ Kwakua alisaini mkataba mwenyewe kwahiyo alilazimika kuufuata ule mkataba iwe alikua
ameusoma au hajausoma, malalamiko ya mlalamikaji yalikubaliwa]]
Facts;-
The claimant purchased a cigarette vending machine for use in her cafeteria. She signed an order
form which stated in small print 'Any express or implied, condition, statement of warranty, statutory
or otherwise is expressly excluded'. The vending machine did not work and the claimant sought to
reject it under the Sale of Goods Act for not being of merchantable quality.
Held:
In signing the order form she was bound by all the terms contained in the form irrespective of
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whether she had read the form or not. Consequently, her claim was unsuccessful.
UNSIGNED DOCUMENTS; -
The main documents here are the receipts, notes and tickets
i. Chapelton v Barry UDC [1940] 1 KB 532 (kukodi kiti cha ufukweni)
{Mlalamikaji alikodi kiti cha ufukweni baada ya kukodi alipewa tiketi na muhudumu wa hivyo
viti, Mlalamikaji alipopewa hiyo tiketi aliiweka mfukoni bila ya kuisoma. Kwenye hiyo tiketi
kulikua na sentensi ya kujitoa kwenye majukumu kama kutatokea tatizo lolote
litakalosababishwa na hicho kiti, mlalamikaji alipatwa na ajali baada ya nguzo ya kuegemea
kutoka kwenye kiti baada ya yeye kukaa, aliamua kufungua mashtaka kuwashitaki Barry
UDC}
[ Sentensi ya kujitoa kwenye majukumu imeandikwa kwenye tiketi na mlalamikaji alipewa hiyo
tiketi wakati ameshasaini mkataba wa kukodi kiti, kwahiyo yale maandishi ya kwenye tiketi
ni nje ya mkataba. Malalamiko ya malalamikaji yalikubaliwa].
Facts;-
The claimant hired a deck chair from Barry UDC for use on the beach. There was a notice on the
beach next to the deck chairs stating that the deck chairs could be hired at 2d for three hours and also
'respectfully requested' the public to obtain tickets issued by the chair attendants. The claimant
obtained a ticket and put it in his pocket without reading it. In fact there was an exclusion clause
printed on the ticket excluding the council's liability for personal injury caused in using the deck
chair. The claimant was injured when he sat on the chair. The fabric of the deck chair split away from
the frame. He brought an action against the council and they sought to rely on the exclusion clause
contained in the ticket.
Held:-
The exclusion clause was not incorporated into the contract. A reasonable person would regard
the ticket as nothing more than a receipt and would not expect it to contain contractual terms.
Furthermore, the wording of the notice suggested that a person could obtain the deck chair and get a
ticket later. The notice constituted an offer and collecting the chair would amount to acceptance. It
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would not be open to the council to introduce new terms after the contract had been formed.
Consequently the claim was successful.
ii. Thornton v Shoe Lane Parking [1971] 2 WLR 585 Court of Appeal
Facts; -
The claimant was injured in a car park partly due to the defendant's negligence. The claimant was
given a ticket on entering the car park after putting money into a machine. The ticket stated the
contract of parking was subject to terms and conditions which were displayed on the inside of the car
park. One of the terms excluded liability for personal injuries arising through negligence. The
question for the court was whether the term was incorporated into the contract ie had the defendant
brought it to the attention of the claimant before or at the time the contract was made. This question
depended upon where the offer and acceptance took place in relation to the machine.
Held: -
The machine itself constituted the offer. The acceptance was by putting the money into the machine.
The ticket was dispensed after the acceptance took place and therefore the clause was not
incorporated into the contract.
iii. Olley v Marlborough Court Hotel [1949] 1 KB 532 ( kubookiwa hoteli)
Facts;-
The claimant booked into a hotel. The contract was made at the reception desk where there was no
mention of an exclusion clause. In the hotel room on the back of the door a notice sought to exclude
liability of the hotel proprietors(owner) for any lost, stolen or damaged property. The claimant had
her fur coat stolen.
Held:-
The notice was ineffective. The contract had already been made by the time the claimant had seen
the notice. It did not therefore form part of the contract. The claim was successful.
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iv. Thompson v London, Midland and Scotland Railway Co [1930] 1 KB 41 Court of Appeal (Ajali
baada ya kushuka kwenye treni)
Facts;-
The claimant was injured whilst stepping off a train. The railway company displayed
prominent(important) notices on the platforms excluding liability personal injury and damage to
property due to negligence. The tickets also stated they were subject to terms and conditions
displayed on the platform. The claimant was illiterate and could not read the signs. She argued that
the exclusion clause was not incorporated into the contract as the railway company had not brought
the clause to her attention at the time the contract was made.
Held:
The clause was incorporated. There is only a requirement to take reasonable steps to bring the
clause to the attention of a reasonable person. There was no duty to ensure that every traveler was
aware of the clause. The claimant was therefore unsuccessful in her claim for damages.
RULES OF CONSTRUCTION OF EXCLUSION CLAUSES

a) The contra proferentem rule (Parties are unequal bargaining power)
Contra proferentem (Latin: "against [the] offeror"), also known as "interpretation against the
draftsman", is a doctrine of contractual interpretation providing that, where a contract or promise,
agreement or term is ambiguous, the preferred meaning should be the one that works against the
interests of the party who provided the wording. The doctrine is often applied to situations involving
standardized contracts or where the parties are of unequal bargaining power, but is applicable to other
cases. However, the doctrine is not directly applicable to situations where the language at issue is
mandated(authorized) by law, as is often the case with insurance contracts and bills of lading.
The reasoning behind this rule is to encourage the drafter of a contract to be as clear and explicit as
possible and to take into account as many foreseeable situations as it can.
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Cases;-
I. Hollier v. Rambler Motors(AMC) Ltd [1972] QB 71.
Facts;-
Hollier left his car with garage for repair as he had done on occasions(event) in the past. The normal
conditions of the contract were contained in form that Hollier had signed on previous occasions but
not on the occasion in question. This form included a term that says “ This company is not responsible
for damages caused by fire to customer's cars on the premises(building)”. The car was damaged in
the fire that was caused by the defendant's negligence, the car owner sued for compensation and the
garage owner tried to rely(depend) on the clause excluding liability for fire.
Held;-
The court of Appeal held firstly that the form was not incorporated to the contract in this case
merely(only) because of the previous course of dealings. It also concluded that for the garage to rely
on the exclusion clause it must have stated in it without any ambiguity that it would not be liable in
the event of its own negligence. In the absence of that precise(exactly) wording the customer might
rightly conclude when making the contract that garage owners would not generally be liable except
where the fire damage was caused by their own negligence when they would naturally be liable.
2. White v. John Warwick & Co Ltd[1953] 1 WLR 1285

Facts;-
An agreement for the hire of a bicycle included a clause that says “ nothing in this agreement shall
render(provide) the owners liable for any personal injury”. The claimant was injured when the
saddle(seat) tipped forward.
Held;-
The court accepted that the words used were enough to relieve the defendants of strict liability in
contract for the hire of the bicycle, they were not sufficiently clear and precise for them to avoid
liability of negligence.
3. Computer & system Engneering plc v. John Lelliott Ltd (1991) The times 21st Ferbruary.
Facts;-
Here a standard form contract for plumbing included a clause excluding liability for damage caused
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by flooding from pipework. The defendant in the case actually fructured(broke) a sprinkler(pipe of
water) system and it was this that led to the damage to the claimant's property. The court had to
consider whether the defendant could escape liabilty by relying on the clause.
Held;-
The court decided that the clause could not protect the defendant and allow him to escape for what in
effect was his own negligence even though the clause was broadly drafted.
PRIVITY OF CONTRACT RULE

This is that contract which cannot confer(grant) rights or impose obligations arising under it
on any person or agent except the parties to it.
The premise is that only parties to contracts should be able to sue to enforce their rights or claim
damages as such. However, the doctrine has proven problematic due to its implications upon contracts
made for the benefit of third parties who are unable to enforce the obligations of the contracting
parties.
Privity of contract occurs only between the parties to the contract, most commonly contract of sale of
goods or services. Horizontal privity arises when the benefits from a contract are to be given to a third
party. Vertical privity involves a contract between two parties, with an independent contract between
one of the parties and another individual or company.
If a third party gets a benefit under a contract, it does not have the right to go against the
parties to the contract beyond its entitlement to a benefit. An example of this occurs when a
manufacturer sells a product to a distributor and the distributor sells the product to a retailer. The
retailer then sells the product to a consumer. There is no privity of contract between the manufacturer
and the consumer.
This, however, does not mean that the parties do not have another form of action e.g. Donoghue v.
Stevenson – here a friend of Ms. Donoghue bought her a bottle of ginger beer, which was defective.
Specifically, the ginger beer contained the partially decomposed remains of a snail. Since the contract
was between her friend and the shop owner, Mrs. Donoghue could not sue under the contract, but it
was established that the manufacturer has a duty of care owed to their consumers and she was awarded
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damages in tort.
Privity is the legal term for a close, mutual, or successive relationship to the same right of property
or the power to enforce a promise or warranty.
N.B;- A third party cannot be protected or cannot be bound by the exclusion clause
Cases
i. New Zealand Shipping v Satterthwaite [1975] AC 154 Privy Council
{ NZ waliingia mkataba wa kubeba mashine za SW, NZ waliweka mashart kua mmiliki wa
mashine hawezi kuwashitaki wafanyakazi wa NZ kwa tatizo lolote ikishapita mwaka mmoja,
kipindi wafanyakazi wanashusha mashine za SW waliiharibu mashine, mmiliki wa mashine
alileta malalamiko baada ya mwaka kupita, wafanyakazi wa NZ walisimama kwenye masharti
waliyowekeana na NZ, SW alisema kua wao hawahusiki kwakua wao sio watu wa tatu katika
mkataba} [ Mahakama iliamua kua wafanyakazi wanahusika ktk mkataba kwasababu wao ni
sehem ya masharti ya mkataba ].
Facts;-
A contract for the carriage of a machine by ship to New Zealand provided that the owners of the
goods could not sue the carriers or stevedores unless any claim was brought within one year of
the action giving rise to the cause of action. The stevedores were independent contractors who were
engaged to load and unload the ship by the ship owner. A stevedore damaged the machine whilst
unloading it. The owner of the machine brought an action against the stevedore after the limitation
period specified in the contract. The stevedore sought to rely(depend) upon the clause in order to
escape liability. The owner of the machine argued that the stevedores could not rely on the clause as
they were not privy to the contract and had not provided them with any consideration.
Held:-
The stevedores had provided consideration in the form of services of unloading the machine. Relying
on the case of Scotson v Pegg, there is nothing to prevent consideration owed to a 3rd party being
valid consideration for a new promise to another party. Therefore the stevedores had protection from
the limitation clause. The claimant's action was unsuccessful.
ii. Scruttons Ltd v Midland Silicones Ltd [1961]

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Scruttons Ltd was shipping a load of crates through a carrier. In the contract between the two
parties there was a limitation of liability clause for $500 (£179) per box. The goods were damaged in
transit due to the negligence of the stevedores. The stevedores were under contract with the shipping
company which contained an exclusion clause. Midland were unaware of the relationship between
the carriers and the stevedores.
Held:
At first blush, it was clear to the Court that the stevedores could not be exempted by the exemption
clause as there was no privity of contract. The Court looked at whether there was a bailment(transfer
of goods) relationship but found none. The case turned on the application of the Elder, Dempster case
which suggested that privity could be circumvented(avoid). Lord Reid proposed that the stevedores
could be covered under the contractual clause through agency if certain pre-conditions were satisfied.
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DOCTRINE OF FUNDAMENTAL BREACH ( FUNDAMENTAL OBLIGATION THEORY)

A fundamental breach of a contract, sometimes known as a repudiatory breach, is a breach
so fundamental that it permits the distressed(suffer) party to terminate performance of the contract,
in addition to entitling that party to sue for damages.
Cases
i. Karsales (Harrow) Ltd. v. Wallis, [1956] 1 W.L.R. 936
{ Mr.Wallis alionyeshwa gari iliyotumika, ambayo alikua anataka kuinunua, Mr Wallis aliikuta
hiyo gari ktk hali nzuri sana na akakubali kuinunua gari kama ataruhusiwa kulipa kwa
awamu, Karsales walimruhusu kulipa kwa awamu ambapo alilipa kiasi, baada ya wiki moja
Wallis akuja kulipa kiasi kingine kisha akaikagua gari na kuikuta ktk hali tofauti na mbaya,
Wallis alikataa kumalizia kiasi kilichobaki, Karsales waliamua kumshtaki amalizie kiasi
kilichobaki kwakua ni mashart ya mkataba} [ Malalamiko ya Karsales hayakukubaliwa hata
kama kulikua na masharti wamewekeana ]
Facts;-
Mr. Wallis viewed a used Buick car that was being sold by Stinton for ₤600. Wallis found the car to
be in excellent condition, and agreed that he would buy the car if Stinton would arrange financing
through a hire-purchase company. Karsales (Harrow) Ltd. bought the car and sold it to Mutual
Finance Ltd., which then finally lent the car to Wallis on hire-purchase terms. Wallis had not seen the
vehicle since his first viewing.
About a week later, the car was left outside, late at night. The following morning, Wallis inspected
the car and found it to be in a substantially(great) different state than it was when he first saw the
vehicle: the bumper was being held on by a rope, the new tires were taken off and old ones put on,
the radio had been removed, the chrome strips around the body were removed, and the car would not
run. Wallis refused to pay for the car since it was not in the same condition as when he agreed to
make the purchase.
Held:
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Karsales sued Wallis for the remaining payments on the vehicle. Karsales relied on an exclusion
clause in their contract, which stated that
"No condition or warranty that the vehicle is roadworthy or as to its age, condition or fitness for any
purpose is given by the owner or implied herein."
The trial judge held that this clause did allow Karsales to recover the remaining costs from
Wallis, and entered a judgement against him.
CLAUSE PURPORTING (IMPERSONATE, PRETEND) TO EXCLUDE LIABILITY FOR

NEGLIGENCE
Negligence (Lat. negligentia, from neglegere, to neglect, literally "not to pick up something") is a
failure to exercise the care that a reasonably prudent person would exercise in like circumstances.The
area of tort law known as negligence involves harm caused by carelessness, not intentional harm.
Cases
i. Thornton v Shoe Lane Parking [1971] 2 WLR 585 Court of Appeal
Facts;-
The claimant was injured in a car park partly due to the defendant's negligence. The claimant was
given a ticket on entering the car park after putting money into a machine. The ticket stated the
contract of parking was subject to terms and conditions which were displayed on the inside of the car
park. One of the terms excluded liability for personal injuries arising through negligence. The
question for the court was whether the term was incorporated into the contract ie had the defendant
brought it to the attention of the claimant before or at the time the contract was made. This question
depended upon where the offer and acceptance took place in relation to the machine.
Held:
The machine itself constituted the offer. The acceptance was by putting the money into the machine.
The ticket was dispensed(distributed,provided) after the acceptance took place and therefore
the clause was not incorporated into the contract.
ii. Rylands v Fletcher [1868] UKHL 1 House of Lords

Facts
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The defendant owned a mill(factory) and constructed a reservoir(pool) on their land. The reservoir
was placed over a disused mine. Water from the reservoir filtered(pass) through to the disused mine
shafts and then spread to a working mine owned by the claimant causing extensive damage.
Held:
The defendants were strictly liable for the damage caused by a non- natural use of land.
Lord Cranworth:
“If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage
to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible,
however careful he may have been, and whatever precautions he may have taken to prevent the
damage.”
DISCHARGE (ALLOW, RELEASE) OF CONTRACT

Discharge of a contract;- This is the circumstance in which the contract is brought to an end. Where
a contract is discharged, each party is freed from their continuing obligations under the contract. A
contract may be discharged in one of the following ways:-
• Discharge By Performance
• Discharge By Repudiatory Breach
• Discharge By Agreement
• Discharge By Frustration
A) DISCHARGE BY PERFORMANCE.
A contract becomes discharged through performance where both parties have fully performed their
contractual obligations. If one party does not fully perform the contract this will amount to a breach
of contract and the other party may have a claim for damages unless the contract has been frustrated.
If the non-performance amounts to a repudiator(relate) breach (breach of condition) the other party
will be released from their obligations. Where a contract is one where the price is payable on
completion, then completion is generally required in order to discharge the contract. This is
often expressed in the terms of being a condition precedent. Completion triggers(cause) the
requirement of payment: no completion, no payment. This general rule was established in Cutter v
Powell and is obviously capable of causing injustice:
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Cases
I- Cutter v Powell [1795] EWHC KB J13
Facts;-
The claimant's husband agreed by contract to act as a second mate on the ship the 'Governor Parry'
on a return voyage(tour,trip) to Jamaica. The voyage was to take eight weeks and he was to be paid
on completion. A term in the contract stated:
"Ten days after the ship 'Governor Parry,' myself master, arrives at Liverpool, I promise to pay to
Mr. T. Cutter the sum of thirty guineas(price), provided he proceeds, continues and does his duty as
second mate in the said ship from hence to the port of Liverpool. Kingston, July 31st, 1793."
Six weeks into the voyage the claimant's husband died. The claimant sought to claim a sum to
represent the six weeks work undertaken.
Held:
The wife's action failed. Payment was on condition that he worked the ship to Liverpool, since he
did not fulfill this condition the widow was entitled to nothing.
Discharge By Performance Is Of Two Types;-
1- Time Performance - The contract must be performed within the stipulated time, if the time of
performance isn't stipulated the contract should be performed within the reasonable time.
Case;-
Panesar v. Poppet
Facts;-
Defendant ordered furniture to be delivered on April 30th, However it was not ready by this date, the
defendant extended the delivery date to may 10th, but the furniture was not ready, where up on he
canceled the transaction, the furniture was delivered on may 12th, the defendant refused to take
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delivery and was sued.

Held;-
It was held that he was not bound to do so as time was of the essence(nature) of the contract and the
plaintiff failed to perform.
2- Precise performance;- This rule must be done exactly with any condition agreed up on.
This rule of Precise performance has the following exception;-

• Substantial performance
• Divisible/Several contracts
• Performance prevented by the promisee
• Acceptance of partial performance
• Tender of performance
a) Substantial(important) performance;-
An exception exists where a court is satisfied that substantial performance is present. The court may
then award the contractually agreed price and deduct sums to reflect the amount not performed. If
however, the performance is not held to amount to substantial performance the claimant is entitled to
nothing. Difficulty arises as to what amounts to substantial performance. There is no
precise(exactly,correct) limit set down but is to be determined on the facts of individual cases.
Cases;-
Bone v. Eyre (1779)
i.Bolton v. Mahadeva [1972] 1 WLR 1009 Court of Appeal
Fact;-
The claimant installed central heating in the defendant's home. The agreed contract price was £560.
The defendant was not happy with the work and refused to pay. Defects(weakness) in the work
amounted to £174.
Held ;-
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The action by the claimant to enforce the payment failed since the court held that there was no
substantial performance.
ii. Hoenig v. Isaacs [1952] 2 All ER 176 Court of Appeal

Facts;-
The claimant agreed to decorate( make look more attractive)and furnish( provide a house with
furniture) the defendant's flat for £750 payable by two installments and the balance on completion.
The claimant completed the work but the defendant was unsatisfied some of the furnishings and
refused to pay the all the final installment. The cost of the defects in the furniture came to £56.
Held:
The claimant had substantially performed the contract and was therefore entitled to the contractually
agreed price minus the cost of the defects.
b) Divisible/Several contracts;-
The rule relating to discharge through full performance applies where there exists an entire contract.
Where it is possible to divide a contract into separate parts, eg. if a sum is agreed to be payable per
week or hour, then the courts can award a sum for the separate parts of the contract which have been
completed.
Cases;-
Ritchie v. Atkinson (1808) 10 East 295
Facts;-
By contract the claimant agreed to carry a cargo of specified quantity of hemp(plant) and iron. The
price agreed was £5 per ton for the hemp and 5 shillings per ton of iron. The claimant only carried
part of the agreed quantity. The defendant argued the contract had not been fully performed and
therefore no payment was due.
Held:
The contract could be divided into separate parts as the parties had agreed a price per ton. The
claimant was thus entitled to payment for the amount carried although the defendant was
entitled to damages for non performance in relation to the amount not carried.
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c) Performance prevented;-
Where the promisee prevents completion of the performance then the promisor is entitled to payment
for the work which has been completed:
Quantum meruit is a Latin phrase meaning "what one has earned or obtain (money) in return for
labor or services.". In the context of contract law, it means something along the lines of "reasonable
value of services".
Cases;-
Planche v Colburn [1831] EWHC KB J56 Kings Bench Division
Facts;-
The claimant agreed to write a book on costume( a set of clothes) and armour(the metal coverings
formerly worn to protect the body in battle) for the defendant as part of a series called 'the Juvenile
Library'. The agreed contract price was £100 to be payable on completion. The claimant
commenced(began) writing and had completed a great deal of it when the defendant canceled the
series. The defendant refused to pay the claimant despite his undertaking and the fact that the claimant
was still willing to complete. The claimant brought an action to enforce payment.
Held:-
The claimant was entitled to recover £50 because the defendant had prevented the performance.
d) Acceptance of partial(incomplete) performance;-
Where one party freely agrees to accept partial performance, then a sum is payable for the work
completed. The main focus is on free acceptance:
Cases;-
Sumpter v Hedges (1898) 1 QB 673 Court of Appeal
Facts;-
The claimant agreed to build two houses and stables for the defendant. It was agreed that £565
would be payable on completion. The claimant commenced(began) performance and then ran out of
money and was unable to complete. He had performed just over half of the contract. The defendant
completed the work himself. The claimant sought to recover £333 representing the value of the
work he had completed. He argued that in completing the work himself, the defendant had thereby
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accepted partial performance and prevented the claimant from completing the contract.
Held:
The claimant's action failed. The court held that the defendant had no choice but to accept partial
performance as he was left with a half completed house on his land.
e)Tender of performance;- This is an offer or attempt to do what is required under a contract or

under the law. Where a party is willing to perform and tries to tender performance but the other party
does not accept the performance then the party seeking to tender performance is discharged from the
contract and the non accepting party is liable in damages for non acceptance:
Cases;-
Startup v MacDonald (1843) 6 Mann & G 593
Facts;-
A contract stated that 10 tons of oil were to be delivered to the defendant within the last 14 days of
March. The claimant delivered the oil at 8.30pm Saturday March 31st. The defendant refused to
accept the delivery because of the lateness(delay) of the hour.
Held:-
The claimant had tendered performance within the agreed contractual period and was thus entitled
to damages for non acceptance.
B) DISCHARGE BY AGREEMENT
A contract may be discharged by agreement when both parties agree to bring the contract to an end
and release each other from their contractual obligations. For a contract to be discharged through
agreement there must be Accord & Satisfaction, as well as Contract underseal.
Accord = agreement
Each party must agree to end the contract. The agreement must be freely given.
Satisfaction = consideration
Both parties must also provide consideration. If both parties have continuing obligations then
generally the consideration will be simply each of them giving up their rights under the contract. The
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only time consideration becomes an issue is where one party has fully performed their part of the
contract when the other has not. The non-performing party must then provide consideration to make
the agreement binding. Also if the agreement is made by deed(intentionally) there is no requirement
to provide consideration. There is in effect a contract to end a contract.
Contract underseal- This is a procedure allowing sensitive or confidential information to be filed
with a court without becoming a matter of public record. The court generally must give permission
for the material to remain under seal
Case;-
Foakes v Beer (1883-84) LR 9 App Cas 605 House of Lords
Facts;-
Dr Foakes owed( have an obligation to pay) Mrs Beer £2,000 after she had obtained judgment
against him in an earlier case. Dr Foakes offered to pay £500 immediately and the rest by
installments, Mrs Beer agreed to this and agreed she would not seek enforcement of the payment
provided he kept up the installments. No mention was made in this agreement of interest although
judgment debts generally incurred interest. Dr Foakes paid all the installments as agreed and Mrs
Beer then brought an action for the interest.
Held:-
Dr Foakes was liable to pay the interest. The agreement reached amounted to part payment of a
debt and under the rule in Pinnel's case this was not good consideration for a promise not to enforce
the full amount due.
Rules of Discharge By Agreement
Novation- the substitution of a new contract in place of an old one.;In contract law and business
law, novation is the act of either:
1. Replacing an obligation to perform with a new obligation; or
2. Adding an obligation to perform; or
3. Replacing a party to an agreement with a new party.
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Conditions or elements of Novation;-

1- There must a consent of all parties involved
2- There must a consideration for the extinguishment of all obligations.
Case;-
Settlementfund trustee v. Nurai (1970) East Africa 562
Facts;-
N bought the bark of wattle and obtained the right to remove more within a certain period from land
owned by S, During that period S sold to the appellant who had knowledge of the N- S agreement.
The appellant resold the land to Y who had no knowledge of the right of N and therefore prevented
him from taking the wattle. N argued that the appellant had been substituted for S by novation and
were now liable for N's failure to secure the bark.
Held;-
The court while allowing N's claim on other grounds refused to recognize the transaction as one of
novation.
Lutta, J. A. said
“considered that the two vital elements to support novation were missing. Those elements
were firstly, that there must be consent of all the parties involved and secondly, there must be
consideration for the extinguishment of the old obligation. The outcome would have been
different”.
Waiver;-A waiver is the voluntary relinquishment or surrender of some known right or privilege.
Cases;-
Hughes v. Metropolitan Railway (1876-77) LR 2 App Cas 439 House of Lords
Facts;-
A landlord gave a tenant 6 months notice to carry out repairs failure to do so would result in
forfeiture( penalty for wrongdoing) of the lease. The landlord and tenant then entered into
negotiations for the tenant to purchase the freehold of the property. It was thought by both parties that
a conveyance( transportation) of the property would take place. The tenant had not carried out the
repairs as he believed he would be purchasing the freehold and the repairs required by the landlord
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were not essential to his use of the property. At the last minute negotiations broke down and the
Landlord gave the tenant notice to quit for failure to carry out the repairs.
Held:
The time limit imposed for carrying out the repairs was suspended during the negotiations.
Jorden V. Money (1854) 5 H. L. C. 185

Facts:
Money owed Marnell 1,200 pounds. Money gave Marnell a bond for this amount. Marnell died and
Mrs Jordan inherited the bond. Money was contemplating marriage, but was concerned about his
means. Mrs Jordan said that she would never enforce the debt, so he married. Five years later, she
sought to enforce the debt, and Money claimed she should be estopped(A legal principle that bars a
party from denying(refuse) or alleging a certain fact owing to that party's previous conduct).
Decision:
The HOUSE OF LORDS said that there was no estoppel in this situation. The The HOUSE OF
LORDS said that estoppel can only work when the statement is about an existing fact, not a promise.
As soon as it becomes a promise, it crosses into the territory of contract law.
miscellaneous;
This case has been held to be authority for the proposition that estoppel was limited to representations
of present fact, and could not be extended to representations of intention.
C) DISCHARGE BY FRUSTRATION OR IMPOSSIBILITY

A contract may be frustrated where there exists a change in circumstances, after the contract was
made, which is not the fault of either of the parties, which renders the contract either impossible to
perform or deprives the contract of its commercial purpose. Where a contract is found to be frustrated,
each party is discharged from future obligations under the contract and neither party may sue for
breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943.
Conditions Or Circumstances Of Discharge A Contract Of Frustration;-

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1. The Rule In Paradine V. Jane
Paradine v Jane [1647]

Facts
Paradine(P) sued Jane(D) for a failure to pay rent for three years on leased lands. Jane
asserted(claimed) as a defense that the lands had been seized(grab suddenly) and occupied by Prince
Rupert of Germany, and that Jane had been put out of possession and frustrated in the performance
of his duties under the lease and was not bound to perform under the contract.
Issue;-
• If a party creates a charge or duty to himself, is he obligated to perform in the face of
frustration of purpose?
Rule;-
• Yes. If a party creates a charge or duty to himself, he is obligated to perform in the face of
frustration of purpose.
The court held that if the law rather than a party creates a duty and the party is unable to
perform due to frustration of purpose, that duty will be excused. However if the party creates
the duty and becomes unable to perform due to frustration of purpose, the law will not protect
the party in his own agreement and performance will not be excused.
Held;-
The court held that in this case the lessee(a tenant) would have gained the advantage of the profits
and therefore he must bear(carry) the risk of the losses.
2. Destruction Of The Subject Matter

This is where by there is destruction of a specific thing necessary for the performance of the contract,
if the contract depends on the existence of a certain thing and that thing is destroyed, the contract cant
be performed and it is discharged.
Case;-
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Taylor v Caldwell (1863) 3 B & S 826

Facts;-
The claimant hired out a music hall in Surrey for the purpose of holding four grand concerts. The
claimant went to great expense and effort in organizing the concerts. However, a week before the
first concert was due to take place the music hall was destroyed by an accidental fire. The claimant
sought to bring an action for breach of contract for failing to provide the hall and claiming damages
for the expenses incurred.
Held:
The claimant's action for breach of contract failed. The contract had been frustrated as the fire
meant the contract was impossible to perform.
3 Personal Incapacity And Death.( Contract Involved Personal Performance)
In a contract for personal services the death or illness of the parties who is to render the personal
services discharges the contract, thus Pianist who contract to give a concert performance but fails on
the date of the concert will be excused if too ill to perform. The contract is frustrated. The illness
must be sufficiently serious to go to the roots of the contract.
Cases;-
Condor v Baron Knights [1966] 1 WLR 87
Fact;-
A 16 year old agreed by contract to play the drums for the defendant band for 7 nights per week for
5 years. The claimant suffered a mental breakdown and was told by his doctor that he should not
perform more than 4 nights per week. The band dismissed him. He brought a claim for wrongful
dismissal.
Held:
The claimant's action was unsuccessful as his medical condition made it impossible for him to
perform his contractual obligations and the contract was thus frustrated.
4. Change in Law Or Legal Reform
Here is Where the contract becomes illegal to perform it will frustrate the contract. So This is the
process of examining existing laws, and advocating and implementing changes in a legal system,
usually with the aim of enhancing justice or efficiency. Law reform bodies carry out research and
recommend ways to simplify and modernize the law. Law reform activities can include preparation
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and presentation of cases in court in order to change the common law
Cases;-
Fibrosa Spolka v Fairbairn [1943] AC 32
Facts;-
An English company which manufactured textile machinery agreed by contract dated 12th July 1939
to supply some machines to a Polish company. The machines were to be delivered in 3-4 months.
£1,600 was payable up front and the balance of £3,200 payable on delivery. The Polish company paid
£1000 on 18th of July on account of the initial payment due. On 1st Sept Germany invaded Poland
and on 3rd Sept Great Britain declared war on Germany. On 23rd of September Orders in Council
made Poland an enemy territory making it illegal for British companies to trade with Poland.
Held:
the contract was frustrated as it was no longer possible to perform the contract because of the
supervening( interruption or change) illegality.
5. Specified Manner (Way, Method, Means)
Where a contract can not be performed in the specified manner.
Cases;-
Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126
Facts;-
By contract the parties agreed that a cargo of cotton seed was to be shipped from Egypt to England.
The contract specified the ship, The Orlando, which was to carry the cargo. This ship became
damaged and was in for repairs when the contract was due to be performed.
Held:
By naming the exactly ship which was to carry the cargo, the contract was frustrated as it was
impossible for this ship to carry the cargo within the contractually agreed period.
6. Commercial Purpose Or Non- Occurrence Of Event

A contract may also be frustrated where it is deprived of its commercial purpose
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Krell v Henry [1903] 2 KB 740

Facts;-
The defendant hired a flat on Pall Mall for the sole purpose of viewing King Edward VII's
coronation(ceremony) procession. The price agreed was £75 for two days. The defendant paid £25
deposit. Due to illness of the King, the coronation was canceled. Consequently, the defendant did not
use the flat. The claimant sought to claim the outstanding £50.
Held:-
The contract was frustrated as cancellation of the procession deprived it of its commercial purpose.
The claimant's action for breach of contract was thus unsuccessful.
NO FRUSTRATION IN THESE SITUATIONS
1. More Difficult or Expensive To Perform

Case;-
Davis Contractors v Fareham UDC [1956] AC 696
Facts;-
Davis Contractors agreed to build 78 houses for Fareham Council within 8 months for an agreed price
of £85,000. Due to a shortage in skilled labor and material the contract took 22 months to complete
and was much more expensive than anticipated(expect, foreseen). Davis Contractors were paid the
contractually agreed price but bought an action arguing for more money based on the fact that the
contract had become frustrated and therefore they were entitled to further payment based on a
quantum meruit basis.
Held:
The contract was not frustrated. The fact that a contract becomes more difficult to perform or not
so profitable is not sufficient to amount to frustration. It was still possible to perform the contract.
Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93

Facts;-
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The defendant agreed to ship some Sudanese peanuts during November or December 1956 to
Hamburg for a certain price. On 2nd of Nov the Suez canal was closed to shipping. The defendant
could still have transported the peanuts within the contractually agreed time but this would mean
going via the Cape of Good Hope which would have taken four times as long and increased the cost
of transport considerably. The defendant did not carry the goods and argued that the contract had been
frustrated.
Held:
The contract was not frustrated. It was still possible to perform the contract without any damage to
the peanuts. The fact that it was more difficult or costly to perform is not sufficient to amount to
frustration.
2. The Fault Is Of Either Of The Parties
Maritime National Fish v Ocean Trawlers [1935] AC 524

Facts;-
The claimant owned five fishing vessels one of which was chartered(authority) to the defendants. The
fishing vessels were all fitted with otter trawler nets. New legislation was introduced requiring
licenses to be held by those using otter trawl nets. The claimant applied for five licenses but was only
granted three. He had to name which vessels the license would be used on. He named his own vessels
and excluded the vessel which the defendant was using. This meant that the defendant was unable
to use the vessel for fishing. The claimant sued the defendant for the price of hire and the defendant
in his defense stated the claimant had committed a breach in not providing a license so he was not
obliged to pay for the cost of hire. The claimant argued there was no breach as the failure to provide
a license was a frustrating event in that the decision to grant licenses rested with the secretary of state.
Held:
The contract was not frustrated since the claimant had chosen to keep the three licenses granted
for himself rather than using one to fulfill his contractual obligation. He had therefore induced the
frustrating event and was therefore in breach of contract.
3. If The Event Should Have Been Foreseen

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Walton Harvey Ltd v Walker & Homfrays Ltd [1931] 1 Ch 274

Facts;-
A hotel owner entered a contract with an advertising agency enabling them to put
illuminated(brighten) advertisement on the roof of their hotel. The hotel owner was then compulsorily
purchased by the Local Authority and demolished. The advertising agency sued for breach of contract
and the hotel argued the contract had become frustrated.
Held:
The contract was not frustrated as the hotel owners were aware that the Local Authority were
looking to purchase the hotel at the time they entered the contract. They should have foreseen the fact
that this could happen in the life time of the contract and made provision in the contract for such an
eventuality. They were therefore liable to pay damages for breach of contract.
Peter Cassidy Seed Co Ltd v Osuustukkuk-Auppa Ltd [1957] 1 WLR 273
Facts;-
The claimant, an English company, purchased some ants eggs from the defendant in Finland. The
ants eggs required an export license. The after agreeing to the sale, the defendant was refused the
license. The claimant brought an action for breach of contract. The defendant argued the contract was
frustrated so they were not liable for breach.
Held:
The defendant should have foreseen the possibility of the licence being refused and therefore the
contract was not frustrated.
4. If There Exists Of Force Majeure ( An Unexpected)

It is an unexpected event, meaning it is beyond the parties' control. I.e, unavoidable hence it can not
in anyway delay performance neither will any of the parties be liable for non performance. So it does
not frustrate the contract but suspends it for a certain period of time. For example, you enter into a
contract with me, and then war breaks out in our country, our contract will not be frustrated per se
but will only be suspends for a certain period of time maybe until the war is over...but yet again it
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depends, sometimes the act of God cud be continuing and this may lead to a long time suspension...but
study and understand the whole doctrine of frustration
Case;-
Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93
Facts
The defendant agreed to ship some Sudanese peanuts during November or December 1956 to
Hamburg for a certain price. On 2nd of Nov the Suez canal was closed to shipping. The defendant
could still have transported the peanuts within the contractually agreed time but this would mean
going via the Cape of Good Hope which would have taken four times as long and increased the cost
of transport considerably. The defendant did not carry the goods and argued that the contract had been
frustrated.
Held:
The contract was not frustrated. It was still possible to perform the contract without any damage
to the peanuts. The fact that it was more difficult or costly to perform is not sufficient to amount to
frustration.
Jackson v Union Marine Insurance (1874) 10 Common Pleas 125

Facts
Mr. Jackson owned a ship - the Spirit of the Dawn. In November 1871 he entered a charter-party for
the ship to go from Liverpool to Newport, and load iron rails, which were going to be used for a new
line in San Francisco. Mr Jackson also had an insurance policy with Union Marine Insurance, pwhich
covered losses for "perils of the sea". The ship left on 2 January 1872 but ran aground in Carnarvon
Bay the next day. She needed repairs until August. The charterers on 15 February secured another
ship to carry the rails. Jackson brought an action on the insurance policy on the chartered
freight(goods).
The jury held that the delay for repairs was so long that it brought the contract in a commercial sense
to an end.
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Held;-
Bramwell B held with the majority (Blackburn J, Mellor J, Lush J and Amphlett B) that the jury had
been correct. The delay meant the charterers were not bound to load the ship and that there was a loss
of the chartered freight by perils of the sea.
Affect of frustration of a contract
Where a contract is found to be frustrated, both parties are released from their obligations under the
contract and neither party may sue for breach.
The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943. This provides:
s.1(2) All money payable under the contract ceases to be payable and any money already paid may
be recovered. Where expenses have been incurred this may be deducted from the amounts payable or
paid. This is at the discretion of the court and is subject to what is just and equitable in the
circumstances of the case. There is no provision allowing expenses to be recovered which exceed the
amounts paid or payable.
S. 1(3) - Where a valuable benefit has been conferred this must be paid for.
D) DISCHARGE BY BREACH
A contract in some circumstances may be discharged by breach of contract. Where there exists a
breach of condition (as oppose to breach of warranty) this will enable the innocent party the right to
repudiate the contract (bring the contract to an end) in addition to claiming damages. A contract
cannot be discharged by a breach of warranty.
I- Fundamental or Actual or repudiatory Breach
In deciding whether there has been fundamental breach of contract it is necessary to ask whether it is
a condition or a warranty, that has been broken, it is not easy to differentiate between those two terms,
as we know condition is the major term of the contract and warranty is minor term of the contract.
Case;-
i. Karsales (Harrow) Ltd. v. Wallis, [1956] 1 W.L.R. 936
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{ Mr.Wallis alionyeshwa gari iliyotumika, ambayo alikua anataka kuinunua, Mr Wallis aliikuta
hiyo gari ktk hali nzuri sana na akakubali kuinunua gari kama ataruhusiwa kulipa kwa
awamu, Karsales walimruhusu kulipa kwa awamu ambapo alilipa kiasi, baada ya wiki moja
Wallis akuja kulipa kiasi kingine kisha akaikagua gari na kuikuta ktk hali tofauti na mbaya,
Wallis alikataa kumalizia kiasi kilichobaki, Karsales waliamua kumshtaki amalizie kiasi
kilichobaki kwakua ni mashart ya mkataba} [ Malalamiko ya Karsales hayakukubaliwa hata
kama kulikua na masharti wamewekeana ]
Facts;-
Mr. Wallis viewed a used Buick car that was being sold by Stinton for ₤600. Wallis found the car to
be in excellent condition, and agreed that he would buy the car if Stinton would arrange financing
through a hire-purchase company. Karsales (Harrow) Ltd. bought the car and sold it to Mutual
Finance Ltd., which then finally lent the car to Wallis on hire-purchase terms. Wallis had not seen the
vehicle since his first viewing.
About a week later, the car was left outside, late at night. The following morning, Wallis inspected
the car and found it to be in a substantially(great) different state than it was when he first saw the
vehicle: the bumper was being held on by a rope, the new tires were taken off and old ones put on,
the radio had been removed, the chrome strips around the body were removed, and the car would not
run. Wallis refused to pay for the car since it was not in the same condition as when he agreed to
make the purchase.
Held:
Karsales sued Wallis for the remaining payments on the vehicle. Karsales relied on an exclusion
clause in their contract, which stated that
"No condition or warranty that the vehicle is roadworthy or as to its age, condition or fitness for any
purpose is given by the owner or implied herein."
The trial judge held that this clause did allow Karsales to recover the remaining costs from
Wallis, and entered a judgement against him.
Poussard v Spiers (1876) 1 QBD 410

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Facts
Madame Poussard entered a contract to perform as an opera singer for three months. She became ill
five days before the opening night and was not able to perform the first four nights. Spiers then
replaced her with another opera singer.
Held:
Madame Poussard was in breach of condition and Spiers were entitled to end the contract. She missed
the opening night which was the most important performance as all the critics and publicity would be
based on this night.
Bettini v Gave Gye (1876) QBD 183

Fact
Bettini agreed by contract to perform as an opera singer for a three month period. He became ill and
missed 6 days of rehearsals. The employer sacked him and replaced him with another opera singer.
Held:
Bettini was in breach of warranty and therefore the employer was not entitled to end the contract.
Missing the rehearsals did not go to the root of the contract.
ii- Anticipatory(expect) repudiation Breach

This occurs when either of the parties expressly or show that he will not honor side of the bargain or
where a party indicates their intention not to perform their contractual obligations, the innocent party
is not obliged to wait for the breach to actually occur before they bring their action for breach, this is
called an expectorate breach.
Cases;-
Hochster v De la Tour (1853) 2 E & B 678
Facts;-
The claimant agreed to be a courier(messenger) for the defendant for 3 months starting on 1st June
1852. On the 11th May the defendant wrote to the claimant stating he no longer wanted his services
and refused to pay compensation. The claimant obtained a service contract elsewhere but this was not
to start until 4th July. The claimant brought an action on 22nd May for breach of contract. The
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defendant argued that there was no breach of contract on 22nd May as the contract was not due to start
until 1st of June.
Held:
Where one party communicates their intention not to perform the contract, the innocent party need
not wait until the breach has occurred before bringing their claim. They may sue immediately or they
can choose to continue with the contract and wait for the breach to occur
Avery v Bowden (1856) 5 E & B 714
Facts;-
By contract the claimant was to carry cargo for the defendant. The claimant arrived early to collect
the cargo and the defendant told them to sale on as they did not have any cargo for them to carry and
would not have by the agreed date. The claimant decided to wait around in the hope that the defendant
would be able to supply some cargo. However, before the date the cargo was supposed to be shipped
the Crimean war broke out which meant the contract became frustrated.
Held;-
The claimant therefore lost their right to sue for breach. Had they brought their action immediately
they would have had a valid claim.
White & Carter (Councils) Ltd v McGregor [1961] UKHL 5 House of Lords
Facts;-
The claimant supplied bins to the Local Authority and were allowed to display adverts on these bins.
The defendant owned a garage. The defendant's sales manager entered a contract with the claimant
for them to place adverts on the bins for a period of 3 years. The agreed price was payable by three
annual instalments and if one of the payments was late the whole price became immediately due. The
defendant had not authorized the sales manager to enter the contract and phoned the claimant on the
same day as the contract had been made telling them that he did not want the advertising. The claimant
ignored the defendant's communication and arranged for the advertising plates to be made up and
placed on the bins. The defendant refused to pay the first instalment and the claimant submitted a bill
for the full three years of advertising.
Held:
The House of Lords held that the claimant was not obliged to accept the breach of contract and could
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continue with the contract. They were thus entitled to full payment for the three years advertising.
Effects of breach
A breach of contract, no matter what form it may take, always entitles the innocent party to maintain
an action for damages, but the rule established by a long line of authorities is that the right of a party
to treat a contract as discharged arises only in three situations. The breaches which give the innocent
party the option of terminating the contract are:
(a) Renunciation
Renunciation is expressed where a party refuses to perform his obligations under the contract.
Example;-
Hochster v De la Tour (1853) 2 E & B 678
Facts
The claimant agreed to be a courier for the defendant for 3 months starting on 1st June 1852. On the
11th May the defendant wrote to the claimant stating he no longer wanted his services and refused to
pay compensation. The claimant obtained a service contract elsewhere but this was not to start until
4th July. The claimant brought an action on 22nd May for breach of contract. The defendant argued
that there was no breach of contract on 22nd May as the contract was not due to start until 1st of June.
Held:
Where one party communicates their intention not to perform the contract, the innocent party need
not wait until the breach has occurred before bringing their claim. They may sue immediately or they
can choose to continue with the contract and wait for the breach to occur.
Renunciation is implied where the reasonable inference from the defendant’s conduct is that he no
longer intends to perform his side of the contract. For example:
Omnium D’Enterprises v Sutherland.
(b) Breach of condition

The second repudiator breach occurs where the party in default has committed
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a breach of condition. Thus, for example,

Poussard v Spiers (1876) 1 QBD 410
Facts
Madame Poussard entered a contract to perform as an opera singer for three months. She became ill
five days before the opening night and was not able to perform the first four nights. Spiers then
replaced her with another opera singer.
Held:
Madame Poussard was in breach of condition and Spiers were entitled to end the contract. She missed
the opening night which was the most important performance as all the critics and publicity would be
based on this night. the employer had a right to terminate the soprano’s employment when she failed
to arrive for performances.
(c) Fundamental breach

The third repudiatory breach is where the party in breach has committed a serious (or fundamental)
breach of an innominate term or totally fails to perform the contract. A repudiatory breach does not
automatically bring the contract to an end. The innocent party has two options: He may treat the
contract as discharged and bring an action for damages for breach of contract immediately. This is
what occurred in, for example,
Hochster v De La Tour.
He may elect to treat the contract as still valid, complete his side of the bargain and then sue for pay
REMEDIES FOR BREACH OF CONTRACT

The only remedies which were available were damages for breach of contract, sometimes damages
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may not be adequate(satisfactory) Various remedies exist in contract law. These include:
1- Damages
2- Specific Performance
3- Rescission
4- Repudiation
5- Injunctions
6- Restitutionary Awards
7- Rectification
8- Quantum Meruit
9- Accounting
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1-DAMAGES - These are a legal remedies available for breach of contract, also Damages are an
award of money to compensate the innocent party(plaintiff). The primary purpose of damages in
contract law is to place the injured party(plaintiff) in the position they would have been in had the
contract been performed.
Case;-
Addis v Gramophone [1909] AC 488 House of Lords
Facts
The claimant was employed as a manager by the defendant. The defendant in breach of contract
dispensed with his services and replaced him with a new manager. The claimant brought an action
for breach of contract claiming that the level of damages should reflect the circumstances in which
he was dismissed damaged his reputation and ability to find suitable employment.
Held:
That he is to be paid adequate( satisfactory) compensation in money for the loss of that which
he would have received had his contract been kept, and no more. Contract law seeks to put the
parties in the position they would have been in had the contract been performed. He was therefore
limited to claiming wages and loss of commission during the contractually agreed notice period.
There was no right to exemplary(perfect)damages or damage to reputation( opinions) in contract
claims. Such claims would have to be actioned in the law of tort.
Types of Damages
Nominal Damages
Substantial Damages
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A- Nominal Damages – This happens when there is breach of contract but the plaintiff has not
suffered a lot, damages will not be big.
Case;-
Brace v. Calder (1895)
Facts;-
B was employed by partnership for two years. After six months two partners died living two serving
partners, a changing partnership having taking place these by law, operated to dismiss all employees
the two remaining partners offered B re-employment on the previous term but B denied re-
employment and sued for wrongful dismissal.
Held;-
Although the dismissal was irregular and was technical a breach of contract, B was entitled to nominal
damages only.
B- Substantial Damages – This is award given to the direct or naturally loss, sometimes the loss may
not be in monetary term. Under the law of contract its a duty of a plaintiff to prove the damages he
had suffered. Addis v Gramophone [1909] AC 488 House of Lords.
Rules of Damages
1. Remoteness of Damages
2. Assessment of Damages
3. Mitigation of Loss or Minimization of Damages
4. Liquidated Damages and Penalties
5. Taxation and Quantum Damages
I) Remoteness (Faraway) Of Damages - Under the rules of remoteness of damage in contract law
set out in Hadley v Baxendale, a claimant may only recover losses which may reasonably be
considered as arising naturally from the breach or those which may reasonably be supposed to be in
the contemplation of the parties at the time the contract was made:
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Cases;-
Hadley v. Baxendale [1854] EWHC Exch J70 Courts of Exchequer
Facts
The crankshaft broke in the Claimant’s mill. He engaged the services of the Defendant to deliver the
crankshaft to the place where it was to be repaired and to subsequently return it after it had been
repaired. Due to neglect (fail to care for properly) of the Defendant, the crankshaft was returned 7
days late, though the defendant was told that the working of the mill was completely depending on it,
there was unreasonable delay of the defender. The Claimant was unable to use the mill during this
time and claimed for loss of profit. The Defendant argued that he was unaware that the mill would
have to be closed during the delay and therefore the loss of profit was too remote.
Held:
The court rejected this claim as too remote.
In judgment the court set down rules:
1. Those which may fairly and reasonably be considered arising naturally from the breach of contract
or
2. Such damages as may reasonably be supposed to have been in the contemplation of both the parties
at the time the contract was made.
If any special circumstances exists which were actually communicated to the Defendant, the Claimant
may recover any damages which would ordinarily follow from a breach of contract under the special
circumstances communicated.
Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. [1949] 2 K.B 528
Facts;-
The claimant purchased a large boiler for use in their drying and laundry business. The defendant was
aware that they wished to put it to immediate(quick) use and knew the nature of their business. The
delivery of the boiler was delayed in breach of contract and the claimants brought an action for the
loss of profit which the boiler would have made during the period in which the delivery was delayed.
The claim contained a sum for a particularly lucrative(profitable) contract which they lost due to the
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absence of the boiler.

Held:
The claimants could only recover losses which were in the reasonable contemplation of the parties
which included the loss of profit that could be expected from the lack of use of the boiler, but the
claimant could not recover for the loss of the exceptionally lucrative contract since the defendant was
aware of this contract.
ii) Assessment(judgment) of damages – The court award damages for the loss plaintiff got, therefore
the court must make an assessment as follows;-
- where the market is available for the goods in question of damages is prema facie(accepted as correct
until proved otherwise) to be ascertained(make sure) by the defense b.t.n the contract price and the
market or the current price at the time when the goods aught to be accepted then at the time of the
refusal to accept.
E.g;- When we have agreed am going to sell you a car for 4 millions, but when I brought the car you
refused for no apparent reason, so the plaintiff would claim damages which are ;-
Car price – Market price = damages.
If is difficult to find or easy to ready the market, the court may make an assessment or estimate of
the probable loss and award damages, if the subject matter has yet being produced, manufactured or
obtained when the repudiation(reject) occurred then the damages will be the profit margin which
refers to a measure of profitability or the percentage of selling price that turned into profit. which
means;-
Damages = profit margin(the amount by which revenue from sales exceeds costs in a business).
Case;-
Startup v MacDonald (1843) 6 Mann & G 593
Facts;-
A contract stated that 10 tons of oil were to be delivered to the defendant within the last 14 days of
March. The claimant delivered the oil at 8.30pm Saturday March 31st. The defendant refused to
accept the delivery because of the lateness(delay) of the hours.
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Held:-
The claimant had tendered performance within the agreed contractual period and was thus entitled
to damages for non acceptance.
H.w gubbenheim v. K.k.k and v.k rajguru,

Facts;-
The plaintiff agreed to export bicycle spokes to the defendant in Uganda, the defendant tried to revoke
the contract on the ground that the delivery was late.
Held;-
The court rejected this claim and therefore had to assess damages on behalf of the plaintiff.
iii) Mitigation of loss or minimization of damages ( make something bad less serious or painful)
This is the principle that a party who has suffered loss (from a tort or breach of contract) has to take
reasonable action to minimize the amount of the loss suffered. This is the duty of innocent party to
do all he can under the circumstances of the case.
Case;-
Janiak v Ippolito, [1985] 1 SCR 146 (Link)
Facts:
The plaintiff P got into a car accident. The procedure which would fix P’s injury from the car accident
would provide P with a 70% chance of success. P said that he would not have any surgery(treatment
of injuries) which provided him less than a 100% chance of success. As a result, P remains disabled
and out of work.
Held;
At trial: The Trial judge held that P was not entitled to damages for pain and suffering OR loss of
earnings due to his unreasonable refusal to undergo the proper medical procedure.
On appeal: Upheld Trial decision. However, the Court of Appeal did award damages for loss of
income due to the fact that recovery from the injury was not completely guaranteed.
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iv) Liquidated(terminated) damages and penalty clauses. (Also referred to as liquidated and
ascertained damages)
Liquidated damages - Are damages whose amount the parties designate during the formation of a
contract for the injured party to collect as compensation upon a specific breach (e.g., late
performance).
Parties to a contract may legitimately(lawful) agree the amount of damages to be paid in the event of
a breach and provide for this in their contract terms. This provides certainty(truth, fact) to each party
so that they know exactly what they are liable to pay should they be unable to perform their
obligations. Such a clause will be enforceable by the courts only in so far as it is a genuine pre-
estimate(real judgment) of loss. If it is a genuine pre-estimate it is known as a liquidated damages
clause. If however, the amount specified in the contract is not a genuine pre-estimate but is aimed at
deterring(discourage) a breach of contract or punishing the party in breach, this is known as a penalty
clause which is not enforceable.
Cases;-
Murray v Leisureplay Plc [2005] EWCA Civ 963 (Court of Appeal)
Facts;-
Mr Murray was employed as Chief Executive Director. His employer dismissed him with 7 weeks
notice. Under the terms of his contract of employment he was to be given 12 months notice or paid
12 months salary instead of notice. Mr Murray sought to enforce this clause and the employer argued
the clause was unenforceable as a penalty. The trial judge followed the principle in Cine Bes and held
that in determining a penalty account had to be taken of Mr. Murray's duty to mitigate his loss and
therefore held the clause to be a penalty.
Held:
The clause was not a penalty. The sum may have been generous but was not unconscionable(not
reasonable) and may have taken into account the difficulty in obtaining alternative work of equal
value.
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Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] UKHL 1
Facts;-
Dunlop sued its tyre retailer, New Garage, for breaching an agreement to not resell Dunlop tyres at a
price lower than that listed in the contract. The agreement then said if that did happen, New Garage
would pay £5 per tyre ‘by way of liquidated damages and not as a penalty’.
Held;-
The judge held that the £5 sum was liquidated damages and enforceable.
The Court of Appeal held that the clause was a penalty and Dunlop could only get nominal damages.
Dunlop appealed.
The House of Lords held that the clause was not a penalty, and merely a genuine pre-estimate of
Dunlop’s potential loss, and so Dunlop could enforce the agreement.
Lord Dunedin set out the following principles or Rules;-

( a ) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount
in comparison with the greatest loss that could conceivably be proved to have followed from the
breach. (Illustration given by Lord Halsbury in Clydebank Case).
( b ) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the
sum stipulated(demanded or required) is a sum greater than the sum which ought to have been paid
(Kemble v Farren). This though one of the most ancient instances is truly a corollary to the last test.
Whether it had its historical origin in the doctrine of the common law that when A. promised to pay
B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain
cases, interest, but could never recover further damages for non-timeouts payment, or whether it was
a survival of the time when equity reformed unconscionable bargains merely because they were
unconscionable, - a subject which much exercised Jessel MR in Wallis v Smith[4] - is probably more
interesting than material.
( c ) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable
by way of compensation, on the occurrence of one or more or all of several events, some of which
may occasion serious and others but trifling damage" (Lord Watson in Lord Elphinstone v Monkland
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Iron and Coal Co).
On the other hand:

(d) It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the
consequences of the breach are such as to make precise pre-estimation almost an impossibility. On
the contrary, that is just the situation when it is probable that pre-estimated damage was the true
bargain between the parties (Clydebank Case, Lord Halsbury; Webster v Bosanquet, Lord Mersey).
Euro London Appointments Ltd v Claessens [2006] EWCA Civ 385 Court of Appeal
Facts;-
The claimant was an employment agency the defendant was a client of the agency looking for
workers. The standard terms of the contract provided that the defendant would pay 20% of the annual
salary for each client they introduced whom the client wished to engage. In the event that a client
terminated the contract within 12 weeks of engagement the claimant would make a refund based on
the amount of time worked. However, this refund was conditional upon the fees having been paid
within 7 days of the invoice date. The defendant engaged two employees introduced by the claimant.
Neither of them worked 12 weeks. The claimant commenced an action demanding full fees. The
defendant argued they were entitled to a refund as the clause depriving them of the right to refund
was unenforceable as a penalty.
Held
The clause was not a penalty as it was not payable on breach of contract.
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2- SPECIFIC PERFORMANCE
Is an order of a court which requires a party to perform a specific act, usually what is stated in a
contract.
Specific performance is an equitable remedy available at the discretion(care) of the judge. It is an
order by the court requiring one party to perform their contractual obligation. Whilst it is often said
that contracts are made to be performed and parties should be held to their contractual obligations,
the courts are often reluctant(unwilling) to order a party to unwillingly perform the contract and
specific performance is only available in limited circumstances. In considering whether to grant
specific performance the courts look to where damages inadequate(unsatisfactory) remedy, the type
of contract and whether equity requires such an order.
E.g;- In issues concerning the Land, because the land is unique thing, when you have agreed then
changes occurred, the court may award damages.
Conditions of Specific Performance;-

Where damages are inadequate (unsatisfactory) remedy, If the claimant could adequately be
compensated by an award of damages for the breach of contract, the courts are unlikely to order
specific performance.
Case;-
Nutbrown v Thornton (1805) 10 Ves 159
Facts;-
The claimant entered a contract to purchase some machinery from the defendant. The defendant, in
breach of contract, refused to deliver(bring) the machines. The defendant was the only manufacturer
of this type of machinery. The claimant brought an action for breach of contract seeking specific
performance of the contract.
Held:
Specific performance of the contract was granted. Whilst an award of damages would ordinarily
be given for non-delivery of goods, damages would be inadequate(unsatisfactory) to compensate the
claimant because he would not be able to buy the machines elsewhere.
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The type of contract, Specific performance is most commonly ordered for contracts for the sale of
land, The courts are unlikely to order specific performance for contracts for personal services and
things which are ordinary.
Case;-
Cohen v Roche [1927] 1 KB 169
Facts;-
The claimant owned a furniture shop and entered an agreement to purchase a quantity of Hepplewhite
chairs to sell in his shop. The defendant, in breach of contract, refused to deliver(bring) the chairs.
The claimant sued for breach of contract and sought specific performance for delivery of the chairs.
Held:
The court refused to grant specific performance. The claimant would be adequately compensated
by an award of damages. The chairs were considered 'ordinary articles of commerce and of no special
value or interest'. The claimant could have purchased the chairs elsewhere.
Whether equity requires such an order

a) Clean hands:-
He who comes to equity must come with clean hands.
Case;-
Walters v Morgan (1861) 3 DF & J 718
Facts;-
The defendant purchased some land. The claimant wished to mine the land and produced a draft
lease(rent) and pressured the defendant into signing the lease before he realized the value of the land.
Once the defendant had discovered the true value, he refused to allow the defendant to mine the land.
The claimant sued for breach of contract and sought specific performance. The defendant sought to
have the contract rescinded(revoked) for misrepresentation.
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Held:
There was no misrepresentation since the claimant had not said anything to mislead the defendant as
to the value of the land. Silence can not amount to misrepresentation. However, the court refused an
order of specific performance as the claimant had sought to take advantage of the defendant’s
ignorance by rushing him into signing the lease.
Lamare v Dixon (1873) LR 6 HL 414
Facts;-
The defendant wished to lease some cellars(basement). He went to view cellars owned by the claimant
but saw that they were damp(wet). The claimant promised that he would make the cellars dry before
the lease commenced (begin,start) and the defendant agreed orally to take the lease. The claimant did
not keep his promise and the defendant refused to complete the lease. The claimant bought an action
for breach of contract seeking specific performance of the lease agreement.
Held:
Specific performance was refused due to the claimant not keeping his promise in making the cellars
dry.
Lord Chelmsford stated :
"The conduct of the party applying for relief is always an important element for
consideration."
b) Laches –
Unreasonable delay pursuing a right or claim, which may result in its dismissal.
Case;-
Mzee bin Ally v. Allybhoy Nurbhoy
The remedy was refused on the ground that he (plaintiff) had slept on his right.
c) Hardship – The court will not grant remedies if it may cause undue hardship, this means the court
will look at the circumstances of the case and humanity.
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Case;-
Patel v Ali [1984] 1 All ER 978
Fact;-
Mr and Mrs Patel contracted to sell their house to Mr Ali. Completion of the sale was delayed by Mr
Patel’s bankruptcy. At the time that they agreed to sell, Mrs Patel was healthy and had one child.
However, during the delay, Mrs Patel contracted bone cancer and had to have a leg amputated (cut
off). She also had to further children and she became heavily reliant (Dependant) on friends and
neighbors to assist her with day to day activities. Mr Ali sought specific performance of the contract.
Held:
Specific performance was denied on the grounds that it would cause hardship on Mrs Patel if she
was required to move out. Whilst the hardship was not the fault of Mr Ali, Goulding J held that it
would be ‘hardship amounting to injustice’ if specific performance was ordered.
Beswick v Beswick (1968)

Facts
Peter Beswick was a coal merchant. He agreed to sell his business to his nephew, the respondent, if
he paid him a certain sum of money for as long as he lived, and then to pay his wife (the appellant)
£5 per week for the rest of her life after he died. He died, and the nephew only paid his aunt once
before stating that no contract existed between them. She was also the administratrix of her husband's
will. Mrs. Beswick was unsuccessful at trial and successful at appeal, which John Joseph Beswick
appealed.
Issue
Is Mrs. Peter Beswick able to sue her nephew either in her own personal capacity, as the executrix of
the will, or both?
Decision
Appeal dismissed.
Reasons
The House of Lords decide that the aunt has no right to sue her nephew in her own capacity as she
was not a party to the contract. This overturns Denning's findings in the lower court allowing third
parties to sue for benefits that were guaranteed to them under a contract. However, in her capacity as
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the administratrix she is able to sue him for the specific performance of his promise that was made in
the contract.
Ratio
Third parties cannot sue for breach of contract when they were not a party to the contract, even if they
were named as a benefactor of the contract.
Executors of wills can sue for specific performance of promises made in contracts with the deceased
person.
Co-op Insurance Society v Argyll Stores [1997] 2 WLR 898 House of Lords
Facts
Co-op Insurance was landlord of Hillsborough Shopping Center in Sheffield which consisted of 25
retail outlets. In 1979, Argyll Stores took a lease of one of the units for a period of 35 years for the
purpose of operating a Safeway supermarket. The lease contained a covenant by which Argyll agreed
to use the outlet as a supermarket and keep it open during the usual hours of business. However in
1995, head office of Argyll Stores took the decision to close 27 of their supermarkets including the
one at Hillsborough which was trading at a loss. Co-op Insurance sought specific performance of the
covenant, fearing the impact on other traders at the site if the Supermarket was to close.
Held:
Specific performance was refused.
Lord Hoffman:
“The purpose of the law of contract is not to punish wrongdoing but to satisfy the expectations
of the party entitled to performance. A remedy which enables him to secure, in money terms,
more than the performance due to him is unjust. From a wider perspective, it cannot be in the
public interest for the courts to require someone to carry on business at a loss if there is any
plausible alternative by which the other party can be given compensation. It is not only a
waste of resources but yokes the parties together in a continuing hostile relationship. The
order for specific performance prolongs the battle. If the defendant is ordered to run a
business, its conduct becomes the subject of a flow of complaints, solicitors' letters and
affidavits. This is wasteful for both parties and the legal system. An award of damages, on the
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other hand, brings the litigation to an end. The defendant pays damages, the forensic link
between them is severed, they go their separate ways and the wounds of conflict can heal.”
3- INJUNCTIONS (ORDER)
A court order by which an individual is required to perform, or is restrained from performing, a
particular act. A writ framed according to the circumstances of the individual case.
Injunctions are another form of an equitable remedy available only at the discretion(care) of the judge.
There are three types: -
1. Interlocutory or interim or temporary injunction (until a court hearing)
2. Prohibitory injunction (a court order that a party must not do something)
3. Mandatory injunction (an order that a party must do something)
Cases;-
Lumley v Wagner (1852) 42 ER 687 High Court of Chancery
Facts;-
The defendant Johanna Wagner, an opera singer, was engaged by the claimant to perform in his
theater for a period of three months. There was a term in the contract preventing her from singing for
anyone else for the duration of the contract. She was then approached by the manager of Covent
Garden Theater, Frederick Gye, who offered her more money to sing for him. The claimant sought
an injunction preventing her from singing at Covent Garden Theater. The defendant argued that to
allow an injunction would in effect amount to specific performance of the contract in circumstances
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where specific performance would not be available.

Held:
The injunction was granted despite it having the effect of forcing the defendant to sing for the
claimant.
Lord St Leonards LC
“Wherever this Court has not proper jurisdiction to enforce specific performance, it operates
to bind men's consciences, as far as they can be bound, to a true and literal performance of
their agreements; and it will not suffer them to depart from their contracts at their pleasure,
leaving the party with whom they have contracted to the mere chance of any damages which
a jury may give.”
Page One Records v Britton [1968] 1 WLR 157

Facts;-
The claimant record company, owned by Larry Page, was the manager of the pop group, The Troggs.
By contract, The Troggs agreed that Page One Records would be their manager and sole agent for 5
years in return for 20% of their profits. By a term of the contract The Troggs agreed not to appoint
anyone else for the duration. However, their relationship with Larry Page broke down and The Troggs
wrote a letter to the claimant seeking to terminate the contract. The claimant sought an injunction to
prevent The Troggs appointing a new manager.
Held:
The injunction was refused. To grant an injunction would be akin to ordering specific performance
of a contract for personal services since the effect of the injunction would be to compel The Troggs
to continue to employ the claimant or not work at all.
Warner Bros v Nelson [1937] 1 KB 209

Facts;-
By contract, the defendant actress Bette Davis, agreed to act exclusively for Warner Bros for two
years. The contract stipulated not only that could she not act for another but also she could take no
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employment of any kind. Bette Davis then moved to England and in breach of contract entered an
agreement to act for another. Warner Bros sought an injunction to prevent her from doing so.
Held:
An injunction was granted but only in so far as it prevented Bette Davis from acting or performing
for another. The term relating to no employment of any kind was severed and did not form part of the
injunction.
Branson J:
“The case before me is therefore one in which it would be proper to grant an injunction
unless to do so would in the circumstances be tantamount to ordering the defendant to perform
her contract or remain idle or unless damages would be the more appropriate remedy. With
regard to the first of these considerations, it would, of course, be impossible to grant an
injunction covering all the negative covenants in the contract. That would, indeed, force the
defendant to perform her contract or remain idle; but this objection is removed by the
restricted form in which the injunction is sought. It is confined to forbidding the defendant,
without the consent of the plaintiffs, to render any services for or in any motion picture or
stage production for anyone other than the plaintiffs.”
4 - QUANTUM MERUIT –
Is a Latin phrase which means "reasonable value of services" or you will be paid for what you have
done.
Cases;-
Planche v Colburn [1831] EWHC KB J56 Kings Bench Division
Facts;-
The claimant agreed to write a book on costume (a set of clothes) and armor (the metal coverings
formerly worn to protect the body in battle) for the defendant as part of a series called 'the Juvenile
Library'. The agreed contract price was £100 to be payable on completion. The claimant
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commenced(began) writing and had completed a great deal of it when the defendant canceled the
series. The defendant refused to pay the claimant despite his undertaking and the fact that the claimant
was still willing to complete. The claimant brought an action to enforce payment.
Held:-
The claimant was entitled to recover £50 because the defendant had prevented the performance.
Sumpter v Hedges (1898) 1 QB 673 Court of Appeal

Facts;-
The claimant agreed to build two houses and stables for the defendant. It was agreed that £565
would be payable on completion. The claimant commenced(began) performance and then ran out of
money and was unable to complete. He had performed just over half of the contract. The defendant
completed the work himself. The claimant sought to recover £333 representing the value of the
work he had completed. He argued that in completing the work himself, the defendant had thereby
accepted partial performance and prevented the claimant from completing the contract.
Held:
The claimant's action failed. The court held that the defendant had no choice but to accept partial
performance as he was left with a half-completed house on his land.
Boardman v Phipps [1966]

Facts;-
Mr Tom Boardman was the solicitor of a family trust. The trust assets include a 27% holding in a
company (a textile company with factories in Coventry, Nuneaton and in Australia through a
subsidiary). Boardman was concerned about the accounts of the company, and thought that to protect
the trust a majority shareholding is required. He and a beneficiary, Tom Phipps, went to a
shareholders' general meeting of the company. They realized together that they could turn the
company around. They suggested to a trustee (Mr Fox) that it would be desirable to acquire a majority
shareholding, but Fox said it was completely out of the question for the trustees to do so. With the
knowledge of the trustees, Boardman and Phipps decided to purchase the shares themselves. They
bought a majority stake. But they did not obtain the fully informed consent of all the beneficiaries.
By capitalizing some of the assets, the company made a distribution of capital without reducing the
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values of the shares. The trust benefited by this distribution £47,000, while Boardman and Phipps
made £75,000. But then John Phipps, another beneficiary, sued for their profits, alleging a conflict of
interest.
Held;-
High Court Wilberforce J. held that Boardman was liable to pay for his breach of the duty of loyalty,
but that he could be paid for his services.
Court of Appeal
Held that Boardman and Phipps had breached his duty of loyalty, which arose as they had become
self-appointed agents representing the trust, by putting themselves in a conflict of interest. They were
therefore liable for the profits earnt. However, they would be able to retain a generous remuneration
for the services he performed. On this, Lord Denning MR said (at 1021)
_£ND-
PREREFINED
BY;
DATIUS DIDACE. (Amicus curiae)
datiuced115@gmail.com
068-5563-704
Visit; https://mzumbeuniversity.academia.edu/Datius_Didace
‘Give someone fish and you will feed him for a single day, teach him how to fish and you will feed him for a lifetime’

Exemption Clauses and Discharge (Allow, Release) of Contract by DATIUS DIDACE

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Exemption Clauses and Discharge (Allow, Release) of Contract by DATIUS DIDACE

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From the SelectedWorks of DATIUS DIDACE(Amicus Curiae)

EXEMPTION CLAUSES BY DATIUS

Available at: https://works.bepress.com/datiuce-didace2/5/

EXCLUSION(REMOVAL) OR EXEMPTION (FREE OR RELEASE) CLAUSES

STANDARD FORM CONTRACT

{Mlalamikaji alipeleka nguo ya harusi kwenye mashine ya kufulia, Akaambiwa na assistant

iii. Olley v Marlborough Court Hotel [1949] 1 KB 532 ( kubookiwa hoteli)

RULES OF CONSTRUCTION OF EXCLUSION CLAUSES

2. White v. John Warwick & Co Ltd[1953] 1 WLR 1285

PRIVITY OF CONTRACT RULE

ii. Scruttons Ltd v Midland Silicones Ltd [1961]

DOCTRINE OF FUNDAMENTAL BREACH ( FUNDAMENTAL OBLIGATION THEORY)

CLAUSE PURPORTING (IMPERSONATE, PRETEND) TO EXCLUDE LIABILITY FOR

ii. Rylands v Fletcher [1868] UKHL 1 House of Lords

DISCHARGE (ALLOW, RELEASE) OF CONTRACT

Discharge By Performance Is Of Two Types;-

delivery and was sued.

This rule of Precise performance has the following exception;-

ii. Hoenig v. Isaacs [1952] 2 All ER 176 Court of Appeal

e)Tender of performance;- This is an offer or attempt to do what is required under a contract or

Rules of Discharge By Agreement

Conditions or elements of Novation;-

Jorden V. Money (1854) 5 H. L. C. 185

C) DISCHARGE BY FRUSTRATION OR IMPOSSIBILITY

Conditions Or Circumstances Of Discharge A Contract Of Frustration;-

1. The Rule In Paradine V. Jane

Paradine v Jane [1647]

2. Destruction Of The Subject Matter

Taylor v Caldwell (1863) 3 B & S 826

and presentation of cases in court in order to change the common law

6. Commercial Purpose Or Non- Occurrence Of Event

Krell v Henry [1903] 2 KB 740

NO FRUSTRATION IN THESE SITUATIONS

1. More Difficult or Expensive To Perform

Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93

2. The Fault Is Of Either Of The Parties

Maritime National Fish v Ocean Trawlers [1935] AC 524

3. If The Event Should Have Been Foreseen

Walton Harvey Ltd v Walker & Homfrays Ltd [1931] 1 Ch 274

Peter Cassidy Seed Co Ltd v Osuustukkuk-Auppa Ltd [1957] 1 WLR 273

4. If There Exists Of Force Majeure ( An Unexpected)

Jackson v Union Marine Insurance (1874) 10 Common Pleas 125

Poussard v Spiers (1876) 1 QBD 410

Bettini v Gave Gye (1876) QBD 183

ii- Anticipatory(expect) repudiation Breach

(b) Breach of condition

a breach of condition. Thus, for example,

(c) Fundamental breach

REMEDIES FOR BREACH OF CONTRACT

absence of the boiler.

H.w gubbenheim v. K.k.k and v.k rajguru,

Lord Dunedin set out the following principles or Rules;-

Iron and Coal Co).

On the other hand:

Conditions of Specific Performance;-

Whether equity requires such an order

Beswick v Beswick (1968)

where specific performance would not be available.

Page One Records v Britton [1968] 1 WLR 157

Warner Bros v Nelson [1937] 1 KB 209

Sumpter v Hedges (1898) 1 QB 673 Court of Appeal

Boardman v Phipps [1966]

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