It must be noted that if the performance was not substantial the party in

It must be noted that if the performance was not

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It must be noted that if the performance was not substantial, the party in default cannot recover for the partial performance and may also be liable to pay damages for breach of contract. 5. Principle of quantum meruit : Acceptance of partial performance by the promisee Where the injury party accepts partial performance of an entire contract, the other party may claim for quantum meruit i.e. a reasonable sum in respect of the benefit conferred by the partial performance. The defaulting party may only claim quantum meruit if the injured party has an option to accept or refuse the partial performance. 6. Rules of Performance of Contract s. 38. (1) provides “the parties to a contract must either perform, or offer to perform, their respective promises, unless the performance is dispensed with or excused under this Act, or of any other law.” s.38 (2) provides “promises bind the representatives of the promisors in case of the death of the promisors before performance, unless a contrary intention appears from the contract.” ILLUSTRATIONS
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A promises to deliver goods to B on a certain day on payment of RM1,000. A dies before that day. A’ s representatives are bound to deliver the goods to B , and B is bound to pay the RM1000 to A’s representatives. (b) A promises to paint a picture for B by a certain day, at a certain price. A dies before the day. The contract cannot be enforced either by A’s representatives or by B . s.41 provides “if it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it.” ILLUSTRATIONS (a) A promises topay B a sum of money. A may perform this promise, either by personally paying the money to B , or by causing it to be paid to B by another; and, if A dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so. (b) A promises to paint a picture for B . A must perform this promise personally. s.42 provides “when a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor.”
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ILLUSTRATIONS A promises to deliver 500kg of palm oil to B. A cannot deliver it but asks C to deliver it. B accepts the delivery of 500kg of palm oil from C. B cannot sue A for non-delivery of the palm oil. s.64 provides “every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.” ILLUSTRATIONS (a) A promises to paint a picture for B . B afterwards forbids him to do so. A is no longer bound to perform the promise.
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  • Winter '17
  • Daniel
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