ILLUSTRATIONS a A a singer enters into a contract with B the manager of a

Illustrations a a a singer enters into a contract

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ILLUSTRATIONS (a) A, a singer, enters into a contract with B , the manager of a theatre, to sing at his theatre two nights in every week during the next two
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months, and B engages to pay her RM100 for each night’s performance. On the sixth night A wilfully absents herself from the theatre. B is at liberty to put an end to the contract. (b) A , a singer, enters into a contract with B , the manager of a theatre, to sing at his theatre two nights in every week during the next two months, and B engages to pay her at the rate of RM100 for each night. On the sixth night A wilfully absents herself. With the assent of B , A sings on the seventh night. B has signified his acquiescence in the continuance of the contract, and cannot now put an end to it, but is entitled to compensation for the damage sustained by him through A’s failure to sing on the sixth night. 8. In Ching Yik Development Sdn Bhd v Setapak Heights Development Sdn Bhd [1996] , the COA held that the terms in a contract can be divided into 2 types: (a) fundamental terms (conditions) and (b) less important terms (warranty). If a fundamental term is breached, the innocent party may consider himself discharged from the contract. If a less important term is breached, the innocent party may not end the contract but may sue for damages. Where it is not clear whether it is a fundamental term or not (innominate term), then the effect of the breach must be seem by construction. If the breach goes to the root of the contract, then it is a fundamental term. If not, then it is less important term. In this case, there was a breach of some fundamental terms.
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9. Rescission 1. In Johnson v Agnew [1980] , it was held that the rescission for breach means that the contract is set aside prospectively but not retrospectively. This means that the innocent party has a right to terminate performance of the contract but not a right to terminate the contract. Thus, in rescission for breach, the parties need not perform their future obligation. In rescission for fraud or misrepresentation, the contract is set aside retrospectively and prospectively meaning that the innocent party has a right to terminate the contract and also terminate performance of the contract. 2. In White & Carter (Councils) Ltd v Mcgregor [1962] , the plaintiff contracted to advertise the defendant’s products for 3 years. Later, the defendant wrote to the plaintiff that they no longer wished to continue with the performance of the contract. The plaintiff refused to discontinue and proceeded to advertise for 3 years and then sued the defendant for the contract price. The HOL by a majority of 3 to 2 held that the plaintiff has a choice: (a) terminate the contract and sue for damages for the anticipatory; or (b) Continue until the actual breach and then sue but subject to the following conditions: I. The plaintiff must have an interest to continue with the contract which cannot be compensated with damages; and
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II. The plaintiff can only insist on continuing with the contract if he cannot get the defendant’s co-operation. 3. How courts will assess the damages in an anticipatory breach.
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  • Winter '17
  • Daniel
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