LAWS104 Study Guide - Final Guide: Marconi Electronic Systems, De Minimis, Village Roadshow Theme Parks
25 Jun 2018
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DISCHARGE BY PERFORMANCE
A party may be discharged from a contract:
-by performance of the promises made; or
-because something has happened that discharges the obligation.
Time for the performance of obligations
-If the contract expressly stipulates the time for performance, then a failure to perform on the stipulated
date constitutes a breach of contract
-If contracts do not expressly stipulate the time for performance, it is often said that the obligation must
be performed within a reasonable time
Electronic Industries v David Jones the plaintiff and defendant made a contract whereby the plaintiff was to
give demonstrations of television in the defendant’s store. The contract featured a fixes place and specific
period. However, a serious coal strike began in NSW resulting in fewer customers. The defendant decided not to
proceed and requested the plaintiff to postpone the demonstration and the plaintiff agreed. However, a substitute
contract had not been made and the original contract was still operative. In spite of the settlement of the coal
strike, the defendant refused to go on and the plaintiff treated the contract as repudiated by the defendant and
sued for damages. The defendant argued that the contract had become unenforceable for lack of a time certain
for its performance. The Supreme Court held that the contract had been varied or rescinded, and on appeal, the
High Court held that the parties were still bound by the contract. Because there was no longer a specific time for
performance, it must have been performed within a reasonable time.
The order of performance of contractual obligations
-If the contract is silent on the order of performance, it becomes a question of construction of the
contract to ascertain the intention of the parties
-Courts will usually distinguish between independent and dependent obligations
-Where the parties’ obligations are independent of one another, the order of performance is irrelevant
-Today, the presumption is that obligations are dependent
Test (Sydney Attractions Group v Schulman, Sackar J)
-The question is one of construction;
-The more closely the obligations are linked to the rights, the easier it will be to construe the rights as
qualified by due observance of the obligation;
-If the obligation constitutes a substantial part of the consideration for the contract or right the court is
likely to construe it as a dependent obligation. That is, to construe the right as qualified by due
observance of the obligation; and
-A practical approach prevails, whereby the presumption is that obligations are dependent in character.
Automatic Fire Sprinklers v Watson the employer’s obligation to pay wages is dependent upon the
employee performing his or her work. If the employee has not performed, the employer is not obliged to make
payment, even if the employee is wrongfully dismissed and thereby precluded from performing his or her
contractual obligation to perform work. In such a case, the employee can sue for damages for breach of contract.
Order – Co-operation, good faith, and performance
-It may be that co-operation is needed in order for parties to fulfil their contractual obligations
(Electronic Industries Ltd v David Jones Ltd)
-‘The construction of the contract is that each agrees to do all that is necessary to be done on his part for
the carrying out of that thing’ (Mackay v Dick, Lord Blackburn)
Servcorp WA v Perron Investments (Buss JA)
-‘[A] duty to cooperate cannot be imposed on a party so as to compel that party: (a) to bring about a
circumstance or result which the contract does not require; or (b) to do something which the contract,
on its proper construction, would relieve him or her from doing’
Stepping Stones Child Care Centre v Early Learning Services (Refshauge J)
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Document Summary
A party may be discharged from a contract: by performance of the promises made; or because something has happened that discharges the obligation. If the contract expressly stipulates the time for performance, then a failure to perform on the stipulated date constitutes a breach of contract. If contracts do not expressly stipulate the time for performance, it is often said that the obligation must be performed within a reasonable time. Electronic industries v david jones the plaintiff and defendant made a contract whereby the plaintiff was to give demonstrations of television in the defendant"s store. The contract featured a fixes place and specific period. However, a serious coal strike began in nsw resulting in fewer customers. The defendant decided not to proceed and requested the plaintiff to postpone the demonstration and the plaintiff agreed. However, a substitute contract had not been made and the original contract was still operative.
