BTC1110 Lecture 5: BTC1110 -Lecture 5
4 Sep 2018
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(Note that online cases are exactly the same!)
Exclusion Clauses:
This will not normally protect where the act is done outside of the terms of scope of the
contract.
The Courts always try to pressure the parties not to intend to exempt liability outside the scope
of the contract or for a breach of any of the fundamental terms of the contract.
Week 5: Termination and Remedies
Most contractual disputes are resolved before court due to: - time taken, - expense involved, -
bad for long term business relationships, - parties can usually negotiate a better outcome.
Ways that a contract can be terminated.
• Performance: Did what the contract stated, all over and completed
• Breach: Incorrectly performed contract
• Frustration: Breach but with excuse -> impossibility of performance
PERFORMANCE!
Exact performance is required or using the substantial rule (meaning that is a substantial
amount of the contract is completed, the contract can be ended.)
BREACH!
Repudiation:
- When a party indicates that it will not, or cannot, complete the contract.
- Anticipatory breach: If repudiation occurs before the time that contract was due to
start.
- Conduct amounting to repudiation: if the party is unwilling or unable to perform the
contract, or a delay in getting lease into registrable form.
- Effect: This could be ignored, and then sue – or it can be accepted and treated as
terminated.
Performance:
- To determine the remedy, you need to determine whether it is a condition or a
warranty. This occurs when the contract has been conducted and completed but not of
good quality.
- The time clauses are regarded as a warranty (and therefore in breach enables
termination), but if “time if of the essence,” it is therefore a CONDITION.
The remedy is then decided by the significance of damages due to the breach
(Innominate Term.)
FRUSTRATION!
Document Summary
(note that online cases are exactly the same!) This will not normally protect where the act is done outside of the terms of scope of the contract. The courts always try to pressure the parties not to intend to exempt liability outside the scope of the contract or for a breach of any of the fundamental terms of the contract. Most contractual disputes are resolved before court due to: - time taken, - expense involved, - bad for long term business relationships, - parties can usually negotiate a better outcome. Ways that a contract can be terminated: performance: did what the contract stated, all over and completed, breach: incorrectly performed contract, frustration: breach but with excuse -> impossibility of performance. Exact performance is required or using the substantial rule (meaning that is a substantial amount of the contract is completed, the contract can be ended. ) When a party indicates that it will not, or cannot, complete the contract.
