A contracts is discharged when the obligations created by it come to an end. A contract may be discharged in any of the following ways:
1. By agreement.
2. By performance of the contract.
3. By lapses of time.
4. By operation of law.
5. By material alteration.
6. By subsequent impossibility of the performance.
7. By breach.
1. By Agreement Sec. (62-64)
The parties may agree to terminate the existence of the contract by any of the following ways:- (a) By Novation (Sec. 62): Substitution of a new contract in place of the old existing one is
known as ‘inovation of contract’. New contract may be either between the same parties or between different parties, the consideration being mutually the discharge of the old contract.
(i) Substitution of a contract with new terms for an old contract between the same parties.
(ii) Substitution of a new party for an old one, the contract remaining the same. Promisee will now look to the third party for the performance of the contract. Original promisor is released of the obligations under the old contract.
(i) A owes money to B under a contract. It is agreed between A, B and C that B shall henceforth accept C as his debtor, instead of A. The old debt of A to B is at an end and a new debt from C to B has been contracted.
(ii) A owes B 10,000 rupees. A enters into an arrangement with B, and gives B a mortgage of his (A’s) estate for 5,000 rupees in place of the debt of 10,000 rupees. This is a new contract and extinguishes the old.
(iii) A owes B 1,000 rupees under a contract. B owes C 1,000 rupees. B orders A to credit C with 1,000 rupees in his books but C does not assent to the arrangement. B still owes C 1,000 rupees, and no new contract has been entered into.
Novation can take place only with the consent of all the parties. It cannot be compulsory. (Appukuthan V. Athapa, 1966).
As a result of novation, old contract is completely discharged and law will not entertain any action based upon the terms of the old contract.
(b) By rescission (Sec. 64) : Rescission means cancellation of the contract. A contract can be rescinded by any of the following ways :-
(i) By mutual consent :- Parties may enter into a simple agreement to rescind the contract before it’s breach.
(ii) By the aggrieved party :- Where a party has committed a breach of the contract, the aggrieved party can rescind the contract without in any way effecting his right of getting compensation for the breach of contract.
(iii) By the party whose consent is not free:- In case of a voidable contract, the party whose consent is not free can, if so decides, rescind the contract.
A contract may also be taken to be impliedly rescinded wherenone of the parties has performed his part till a long and no party has any complaint against the other.
(c) By alteration: Alteration means change in one or more of the conditions of the contract.
Alteration made by the mutual consent of the parties will be perfectly valid. But any material alteration in terms of a written contract by the one party without the consent of other party will discharge such party from its obligations under the contract.
In case of novation a new contract replaces an old contract. The parties may also change. While in case of alteration only some of the terms of the contract are changed. Parties also continue to be the same.
(d) By remission (Sec. 63) : Remission means acceptance of a lesser performance than what was actually due under the contract. According to Sec. 63 a party may dispense with or remit, wholly or in part, the performance of the promise made to him. He can also extend the time of such performance or accept instead of any satisfaction which he deems fit. A promise to do so will be binding even though there is no consideration for it.
(1) A owes B Rs. 5,000. A pays to B and B accepts in satisfaction of whole debt Rs. 2,000 paid at the time and place where Rs. 5,000 were payable. The whole debt is discharged.
(ii) A owes B, under a contract, a sum of money., the amount of which has not been ascertained.
A without ascertaining the amount gives to B, and B, in satisfaction therefore, accepts the sum of Rs. 2,000. This is a discharge of the whole debt whatever may be its amount.
Accord and satisfaction: These two terms are used in English Law. In England, a promise to accept less than what is actually due under the contract is not enforceable, but if this promise has been actually carried out, it will give a valid discharge to the other partly.
Example: A is B’s debtor for a sum, of Rs. 500. B agrees to accept Rs. 300 in full satisfaction of his claim. This promise is unenforceable. However, if A pays Rs. 300 and B accepts the payment, A will be discharged from his liability for the whole debt.
‘Accord means promise to accept less than what is due under the contract. ‘Satisfaction’ implies the payment or the satisfaction of the lesser obligation. An accord not followed by satisfaction will be unenforceable. Actual performance of the new promise and its acceptance by the other party is essentail to discharge the old obligations by accord and satisfaction. The original cause of action is not discharged so long as the satisfaction, agreed upon, remains executory.
(e) Owing to the occurrence of an event, on the happening of which it was previously agreed that all rights and liabilities should cease.
(f) By waiver (Sec. 63) : A contract may be discharged by agreement between the parties to waive their rights arising from the contract. Thus, in case of waiver, the person who is entitled to any right under the contract, intentionally relinquishes them without consideration and without a new agreement. Under English law waiver is possible only by agreement under seal.
Example: A promises to paint a picture for B.B afterwards forbids him to do so. A is no longer bound to perform the promise.
2. By performance of the contract (Sec. 37)
When parties fulfil their obligations and promises under a contract the contract is said to have been performed and discharged. Performance should be complete and according to the real intentions of the agreement. Offer of performance shall have the same effect as performance. A party to a contract shall become free from all obligations if it had offered to perform his part of the promise but it was not accepted by the other party.
(3) By Lapse of time
Every contract must be performed either within the period fixed or within a reasonable time of the contract. Lapse of time may discharge the contract by barring the right to bring an action to enforce the contract under the Limitation Act.
4. By operation of Law
A contract is discharged or terminated by operation of other laws in the following cases:
(a) Merger. Merger implies coinciding and meeting of an inferior and superior right on one and the same person. In such a case inferior right available to a party under an agreement will automatically vanish.
Examples: A is holding a property under lease. He subsequently buys that property. A’s right as a tenant is inferior to his right as an owner of the property. The right as a tenant and right as owner have coicided and met in one persion i.e. A. Thereofre, A’s rights as a lesee will terminate.
(b) Death: In case a contract is of a personal nature, the death of the promisor will discharge the contract. In other caes, the rights and liabilities of the deceased person shall pass to his legal representatives.
(c) By complete loss of evidence of the existence of the contract.
(d) By insolvency. An insolvent is released from performing his part of the contract by law. Order of discharge, however gives a new lease of life to the insolvent and he is discharged from all obligations arising from all his earlier contracts.
5. By material alternation
Any material alteration made intentionally in a written contract by the promisee or his agent without the consent of the promisor entitles the later to regard the contract as rescinded.
An alternation will be taken to be material if it directly or indirectly affects the nature or operation of the contract or the identity, validity or effect of the document.
6. By supervening impossibility of performance (Sec. 56)
Supervening impossibility arises due to the happening of certain events which were neither in the contemplation of the parties when they entered into the agreement nor either of the parties are responsible for causing the performance of the contract impossible. In such a case the contract will be void as soon as such events make the performance of the contract impossible. The impossibility must be either legal or physical but not commercial. This is called “Doctrine or Supervening Impossibility”. Section 56 of the Indian Contract Act lays down:
“An agreement to do an impossible act is void”.
A contract to do an act, which after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, becomes void when the act becomes impossible or unlawful. This is called “Supervening Impossibility”, i.e. impossibility arising subsequent to the formation of the contract. The supervening impossibility may be due to any of the following causes:
(a) By the destruction of the subject matter. If the subject matter of the contract is destroyed subsequent to the formation of the contract, without any fault of either of the parties, the contract shall become void.
Example: (i) A music hall was let for a series of concerts on certain days. The hall was burnt down before the date of the first concert. The contract was held to be void.
(ii) A person contracted to deliver a part of a specific crop of potatoes. The potatoes were destroyed through no fault of the party. The contract was held to be discharged. Howell V. Coupland,1876).
(b) By the non-existence of a state of things necessary for the performance. If a contract is made on the basis of continued existence of certain state of circumstances, the contract stands discharged if the state of things ceases to exist.
Example: (i) H hired a room from K for two days to witness the coronation procession of King Edward VII. K knew the object of the contract though the contract contained no reference to the coronation. Owing to King’s illness the procession was cancelled. It was held that H was excused from paying rent for the room, as the existence of the procession as the basis of the contract and its abandonment discharged the contract. (Krell V. Henry 1903).
(ii) A and B contracted to marry each other. Before the time fixed for marriage, A goes mad. The contract become void.
(c) Death or personal incapacity of the promisor. Contracts involving personal skill of the promisor will stand discharged in the case of his death or personal incapacity.
Example: A contracts to act at a theatre for six months in consideratin of a sum paid in advance by B. On several occasions A is too ill to act. The contract to act on the occasions becomes void.
(d) Change of law. On account of subsequent change in law, the performance of the contract may become impossible. The object of the contract may be declared to be unlawful.
Example: (i) A, who is governed by Muslim law and who already had a wife promises to marry B. Subsequent to this promise and before it is carried out, Special Marriage Act prohibiting polygamy is passed. The contract to marry becomes void.
Example: (ii) X sold to Y a specific parcel of wheat in a godown. Before delivery could be made, the godown was sealed by the Government and the entire quantity was requisitioned by the Government under Statutory Power. The contract was held discharged (Re Shipp, Anderson & Co. V. Harrison Brs. and Co’s Arbitration (1915).
(E) Outbreak of War. A contract entered into with an alien enemy during the war is unlawful and, therefore, void ab initio contracts made before the outbreak of war either suspended or declared void by the Government. If they are suspended, they may be performed after the termination of the war.
Example: A contracts to take in cargo for B at a foreign port. A’s Government afterwards declared war against the country in which port is situated. The contract becomes void when war is declared.
It is worthwhile to not that the word “impossible” under Section 56 has not been used in the physical or literal sense. A contract may not have become literally or physically impossible to perform but if an untoward event has happened which has totally upset the very foundations of the contract will be taken to be impossible to perform.
Cases not Covered by Supervening Impossibility
It may be stated that impossibility to perform arising subsequently to the agreement will not, as a rule, relieve the promisor from performing his part in all cases, because, “Where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforseen accidents, the performance of his contract has become unexpectedly burdensome or even impossible (Tayler V. Caldwell (1863). Therefore, in the following cases the doctrine of supervening impossibility wll not apply.
(a) Difficulty in performance. A contract can be avoided on the ground of supervening impossibility only when the events taking place make the performance of the contract physically or legally impossible as contemplated by the parties at the time of the making of the contract. Difficulty in performance will not discharge a contract on the ground of impossibility of performance.
Example: (i) A sold to B a certain quality of Finland timber to be delivered between July and September1914. Before any timber was supplied, war brokeout in the month of August and transport was disorganised so that A could not bring any timber from Finland. It was held, B was not concerned with the way in which A was going to get timber, and, therefore, impossibility of getting timber from Finland did not excuse performances. Blakburn Bobbin Co. V.T.W. Allen & Sons, 1918).
(ii) X pormised to send certain goods from Bombay to Antwerp in September. In August war brokeout and shipping space was not available except at very high rates. It was held that the increase of freight rates do not excuse performance.
(b) Commercial impossibility: A party cannot be discharged from performing his part of the contract simply on the ground that it will be now-profitable for him to perform the contract.
Example: A agrees to supply certain goods to B. Due to outbreak of war the price of goods suddenly shoots up. A is not discharged from his liability to supply goods to B.
(c) Impossibility due to behaviour of a third person: A contract, the performance of which depends on the behaviour of a third person, shall not become impossible of performance merely because the third party acted in a particular manner agreed upon, on the ground that if a person chooses to answer for the voluntary act of third person, he must be held to warrant his ability to procure that act.
Example: X enters into a contract with Y for the sale of certain goods to be produced by Z a manufacturer of those goods. Z does not manufacture the goods. X is liable to Y for damages.
(d) Strikes, lockouts and civil disturbances: Strikes lock-outs and civil disturbances will not discharge a party from performing his part of the contract unless a specific provision to this effect has been made in the contract.
Example: X agreed to supply certain goods to Y. The goods were to be procured from Algeria. Due to riots and civil disturbances in that country goods could not be procured. It was held that there was no excuse for the non-performance of the contract. (Jacobs V. Credit Ilyonnais 1884).
(e) Partial Impossibility: Where there are several purposes for which a contract is made, failure of one of the objects will not terminate the contract.
Example: A company agreed to let a boat to H to view, (i) the naval review at the coronation; and (ii) to cruise round the fleet. Due to the illness of the King the naval review was cancelled, but the fleet was assembled. The boat, therefore, could sail round the fleet. Held, the contract was not discharged. (H.B. Steamboat Co. V. Hulton, 1903).
Effects of supervening Impossibility
1. The contract becomes void in case its performance becomes subsequently impossible Parties to the contract will be released from further performance (Sec. 56 para 2).
2. The person, who has recieved any advantage under a contract which becomes subsequently void is bound to restore it or to make compensation for it to the person from whom he received it (Sec. 65).
3. Where one person has promised to do something which he knew or with reasonable diligence might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non- performance of the promise (Sec. 56 para 3).
Example: A contracts to marry B being already married to C and being forbidden by the law to which he is subject to practice polygamy. A must make compensation to B for the loss caused to her by the non-performance of his promise.
7. By Breach
Breach means failure of a party to perform his or her obligation under a contract Breach of contract may arise in two ways.
1. Actual Breach.
2. Anticipatory Brerach.
Actual Breach : Actual breach means breach committed either; (i) at the time when the performance of the contract is due; or (ii) during the performance of the contract.
Example: (i) agrees to supply to B on the 1st February, 1975, 1000 bags of sugar. On 1st February, 1975 he fails to supply. This is actual breach of contract at the time when the peroformance is due. The breach has been committed by A.
(ii) If on 1st February, 1975 A is prepared to supply the required number of bags of sugar and B without any valid reasons refuses to accept them, B is guilty of breach a contract.
Breach of a contract committed before the date of performance of the contract is called anticipatory breach of contract. (Sec. 39). The contract in this case is repudiated before the time fixed for its performance arrives and is so discharged.
Example: (i) A agrees to employ B from 1st of March. On 1st February, he writes to B that he need not join the service, the contract has been expressly repudiated by A before the date of its performance.
(ii) A agrees to marry B. But before the date A marries C. The contract has been repudiated by A by his conduct before the due date of its performance.
Anticipatory breach of contract does not give rise to a right of action unless the promisee elects to treat it as equivalent to actual breach.
Remedies in the case of anticipatory breach
Two remedies are open to a promisee in the case of an anticipatory breach of contract. He may exercise any one of them:
1. To take the anticipatory breach as actual breach and sue for damages and other rights that may be available to him under the law. Thus, promisee may treat the contract as over without waiting for the arrival the due date of the performance of the contract.
Example: K promised to marry F soon after the death of K’s father. During the father’s lifetime K absolutely refused to marry F. It was held that through the time of performance of the contract had not arrived. F was entitled to sue for the breach of promise to marry. (Frost V Knight (1872).
2. To wait till the due date of performance of the contract and then avail of legal remedies in case of breach of contract available against the party guilty of breach.
If the promisee decides to enjoy the first remedy i.e., termination of the contract at the time when anticipatory breach of contract is communicated to him, the quantum of damages will be assessed by the difference of prices prevailing on the date of breach and the contract price. But if the party keeps the contract alive till the due of performance arrives, damages will be measured by the difference between the contract price and the prices prevailing on the date fixed for the performance of the contract.
In a case when the promisee keeps the contract alive the contract will remain operative for the benefit of both the parties. If during the interval i.e. the date of breach and the due date for the performance of the contract, special circumstances intervene which operate for the benefit of the promisor, the promisor would also be legally entitled to take advantage of them. He may still perform the contract irrespective of his earlier repudiation (Phul Chand V. Jugal Kishore).
REMEDIES FOR BREACH OF CONTRACT
In the case of breach of contract on the part of one party, the aggrieved or injured party has the following remedies available:-
1. Rescission of the contract.
3. Quantum meruit.
4. Specific Performance.
Rescissioin of the Contract
Rescission means the setting aside of the contract. The aggrieved party may be allowed by the court of treat the contract at an end and thereby, terminate all his liabilities under the contract. The court, however, will not allow recession of the contract in the following cases:
(i) Where the party wishing to set aside the contract has expressly or impliedly ratified the contract.
(ii) Where only a part of the contract is sought to be set aside and that part cannot be separated from the rest of the contract.
(iii) Where without fault of either party, there is a change in the circumstances since the making of the contract, on account of which the parties canot be substantially restored to the position in which they were before the contract was made.
(iv) Where during the subsistence of the contract, third parties have acquired rights in the subject matter of the contract in good faith and for value.
The party rescinding the contract will have to restore all benefits received by him under the contract to the other party. Of course, he will be entitled to get compensation for the loss suffered by him on account of non-fulfillment of the contract.
Damages mean monetary compensation payable by the defaulting party to the aggrieved party in the event of the breach of a contract. The object of providing damages is to put the aggrieved party in the same position, so far as money can do, in which he would have been, had the contract been performed.
Types of Damages
Damages may be.
1. Ordinary damages.
2. Special damages.
3. Exemplary or vindictive damages.
4. Nominal damages.
1. Ordinary damages: Damages which arise in the ordinary course of events from the breach of contract are called ordinary damages. These damages constitute the direct loss suffered by the aggrieved party. They are estimated on the basis of circumstances prevailing on the date of the breach of the contract. Subsequent circumstances tending to change the quantum of damages are ignored.
2. Special damages: They are those which result from the breach of the contract under special circumstances. They constitute the indirect loss suffered by the aggrieved party on account of breach of the contract. They can be recovered only when the special circumstances responsible for the special losses were made known to the other party at the time of the making of the contract.
3. Exemplary or vindictive damages: They are quite heavy in amount and are awarded only in two cases:
1. Breach of a contract to marry.
2. Dishonour of a customer’s cheque by the bank without any proper reason. These damage are awarded with the intention of punishing the defaulting party. They are of a different nature and their object is to prevent the parties from committing breach. In the case of breach of contract to marry damages will include compensation for the loss of the feelings and the reputation of the aggrieved party. In the case of dishonour of a cheque damages are awarded taking into consideration the loss to the prestige and goodwill of the customer and the general rule is that the smaller the cheque the greater is the amount of damages.
(4) Nominal Damages: These damages are quite small in amount. They are never granted by way of compensation for the loss. In such usually actual loss is very negligible. They are awarded simply to recognize the right of the party of claim damages for breach of the contract.
Rules regarding the determination of damages (Sec. 73)
The rules regarding damages have been very explained in an English case of Hadley V. Baxendale.
The case is discussed below:
“His mill was stopped on account of the breakage of a crankshaft B, a common carrier was entrusted with the delivery of this machine part for taking it to its makers at Green which as a pattern for a new one. B, did not have this information that delay in carrying the machine would result in loss of profits. The delivery was delayed beyond a reasonable time by some neglect on the part of B. H. claimed from B compensation for the wages of workers and depreciation charges which were incurred during the period the factory was idle for the delayed delivery and for loss of profit which might have been made if the factory was working the first two items were allowed because they were the natural consequences of breach but the loss of profit was disallowed as it was special or remote loss which could be recovered only when the party had information of it.”
Alderson, J. Observed in the above case as follows.
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract as the probable result of the breach of it.”
Rules regarding the ascertainment of the amount of damages can be summarised as follows:
1. The principal upon which damages are to be assessed is that where a party sustains a loss by reason of breach of contract, he is, so far as money can do it, to be placed in the same situation with respect to damages if the contract had been performed. Aggrieved party shall be allowed compensation only for the actual loss suffered by him.
2. A party who sustains loss by the breach of a contract is entitled to recover from the party breaking it, compensation for any loss or damages caused to him:
3. Compensation can be claimed for damages:-
(a) Which arise naturally in the usual course of things from breach of contract itself. (Hadley V. Baxendale, 1854) Damages are paid only for the proximate consequences of the breach of a contract; or
(b) As may reasonably be supposed to have been in the contemplation of both the parties, at the time they made the contract, as the probable result of the breach of it.
Claim for damages must be fair and reasonable.
4. Special or indirect loss can be recovered only when the special circumstances have been made known to the other party. Examples (1) A contracts to buy of B, at a stated price, 50 maunds of rice, no time being fixed for delivery. A afterwards informs B, that he will not accept the rice if tendered to him. B is entitled to receive from A, by way of compensation, the amount, if any, by which the contract price exceeds that which B can obtain for the rice at the time when A informs B that he will not accept it.
(ii) A contracts with B to pay B Rs. 1,000 if he fails to pay B Rs. 500 on a given day. A fails to pay B Rs. 500 on that day. B is entitled to recover from A such compensation, not exceeding Rs. 1,000 as the court considers reasonable.
5. The party suffering from the breach is expected to take reasonable step to minimise the loss. He cannot claim as damages any loss which he has suffered due to his own negligence.
A fires B’s ship to go to Bombay, and agrees to take on board on the first of January, a cargo which A is to provide, and to bring it to Calcutta, the freight to be paid, when earned. B’s ship does not go to Bombay, but A has opportunities of procuring suitable conveyance for the cargo upon terms as advantageous as those on which he had chartered the ship. A avails himself of those opportunities; but is put to trouble and expense in doing so. A is entitled to receive compensation from B in respect of such trouble and expense.
6. Damages are given by way of restitution and compensation and not by way of punishment. Aggrieved party can recover only the actual pecuniary loss sustained by him and not exemplary damages, except in the circumstances already stated in the previous pages.
7. Nominal damages may be granted when breach of a contract is committed without any real loss.
8. In contracts of sale and purchase of goods the measure of damages will be the sum by which the contract price falls short of the price at which the purchaser might have obtained goods of life quality at the time and place that they should have been delivered. When no date has been fixed for the performance of the contract and the promisor commits a breach, the measure of damages will be the difference between the contract price and the market price at the date of the refusal to perform.
It is to be noted that in case of such a contract if the promisor (seller) retains the goods after the breach of the contract by the promisee (buyer), he cannot recover from the buyer and further loss if the market fails, nor will be liable to have his damages reduced if the market rises, (Jamal V. Molla Dawood and Sons (1916).
A agreed to sell certain shares to B to be delivered on 30th December. On account of heavy fall in the value of shares on the date B declined to accept the delivery of shares. Subsequently A sold the shares at a price higher than that prevailing on 30th December. Since his shares had picked up in the mean time. In a suit brought A it was held that he was entitled to recover from B the difference between the contract price of the shares and their market price on 31st December and B was not entitled to the benefits of the profits accured after the breach.
9. As regards damages arising from the breach of contracts for the payment of money on a particular date, interest on the principal sum from the date on which the sum was agreed to be paid till the actual date of payment will be sufficient compensation to the aggrieved party.
10. If a sum is named in the contract as the amount to be paid in case of its breach if the contract contains any other stipulation by way of penalty for failure to perfrom his part of the obligation under a contract, court will allow reasonable compensation not exceeding the amount so named in the contract, (Kemble V. Farren 1829).
11. Damages for breach of services contracts by the employers will be determined with reference to the usual terms of wages for the employment contracted for and the time that would be lost before similar employment can be obtained.
12. A carrier of goods can be held responsible for damages arising from deterioration caused by delay even without any prior notice. deterioration in the value of goods includes both physical damage to the goods as well as damages arising from the loss of special opportunity for sale. (Wilson V. Luncashire and Yorkshire Rly. Co.)
Literally speaking the words “Quantum Meruit” mean “as much as merited” or “as much as earned”. It is principle which provides for payment of compensation under certain circumstances, to a person who has rendered goods or services to another person under a contract which could not or has not been fully performed.
Example (i) :A person renders some service to a company under contract of employment which is duly approved by the Board of Directors of that compnay. Subsequently the constitution of Board of Director’s found to be illegal and, therefore, the contract of employment becomes void. The employee who has rendered some service to the company shall be entitled to claim remuneration for his service under the doctrine of quantum meruit.
(ii) X forgets certain goods at Y’s house. He had no intention to have them with him gratuitously.Y
uses those goods for his personal benefit. X can compel Y to pay for those goods. Doctrine of Quantum meruit is however, subject to the following limitation:
(a) In a contract which is not divisible in to parts and a lumpsum of money is promised to be paid for the complete work, past performance will not entitle the party to claim any payment.
Example: A mate was engaged on the term that he would be paid in a lumpsum for a complete voyage. He died before that voyage was completed. It was held that his representatives could not recover the lumpsum neither could they sue for payment for the services rendered by the deceased. (Cutter V. Powel, 6: TR.320).
(b) A person, who himself is guilty of breach of contract, cannot be allowed claim any payment under the doctrine of quantum meruit.
Example: A, a builder, undertakes to build a house on the land of X for a lumpsum. After A has done part of the work he refuses to finish it, and X completes the building using some fo the materials left on the premises by A. Can A recover compensation for the work he has done and for the materials used by X?
A contract being a complete entity no action lies against X, either on the original contract or on a quantum meruit respecting the work done. The fact that X completes the work is no evidence of an undertaking to pay for what he has been following the rule in Sumpter V. Hedges (1878).
If in completing the premises X uses the materials belonging to A, A will have a good claim in respect of the value of the materials used.
But the above rule is subject to the following exception:-
(i) In case of a divisible contract, part performance will also entitle the defaulting party to claim compensation the basis of quantum meruit if the other party has taken the benefit of what has been done.
(ii) If a lumpsum is to be paid for the compensation of an entire work and the work has been completed in full though, badly the defaulting party can recover the lumpsum less a deduction for bad workmanship.
(c) Any claim based upon the doctrine of quantum meruit cannot be entertained unless there is an evidence of express or implied promise to pay for the work which has already been done.
Following two remedies are available to the aggrieved party under equity for breach of a contract.
Specific performance: Law courts can at their discretion, order for the specific performance of a contract according to the provisions of the Specific Relief Act in those cases where compensation will not be an adequate remedy or actual damages cannot accurately be assessed.
Specific performance means the actual carrying out by the parties to contract, and in proper cases the court will insist on the parties carrying out their agreement. Specific performance of agreement will not be granted in the following cases:-
(1) Where the agreement has been made without consideration.
(2) Where the court cannot supervise the execution of the contract e.g. a building contract.
(3) Where the contract is of a personal nature.
(4) Where on of the parties is a minor.
Specific performance is usually granted in contracts connected with land or sale of rare articles. It is, however, to be noted that the plaintiff who seeks specific performance must, in his term perform all the terms of the contract which he ought to have performed at the date of the action (Pudi Lazarus V. Rev. Johnson Edard. 1976 A.P. 243).
Where a contract is of a negative character, i.e., a party has promised not to do come thing and he does it, and thereby commits a breach of the contract, the aggrieved party may under certain circumstances, seek the protection of the court and obtain an injunction forbidding the party from committing breach. An injunction is an order of the court instructing a person to refrain from doing some act which has been the subject matter of a contract, Courts, at their discretion, may grant a temporary or a perpetual injunction for an indefinite period.
For example: A agreed to sing at B’s theatre and to sing nowhere else for a certain period. Afterwards A made a contract with E to sing at E’s theatre and refused to sing at B’s theatre. The court refused to order specific performance as the contract was of a personal nature but granted an injunction to restrain the breach of A’s promise not to sing else where.
Equitable rights of specific performance or injunction may be lost by laches. Equity is for the benefit of the diligent and not for the sleepy.