performance when time is not essential the contract is not voidable but the

Performance when time is not essential the contract

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performance when time is not essential, the contract is not voidable but the promisee is entitled to compensation from the promisor for any loss suffered. essence of time in performance ( s.56) Essence Non essence s.56 (1) + s.56 (3) s.56 (2) Affirm Rescind Affirm Damages
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With written notice ‘reserve the right to claim damages’ while accepting the performances Damages
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(C) Discharge By Breach 1. S. 40 provides that “when a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.” 2. In Choo Yin Loo v Visuvalingam Pillay [1930] , the court said that s. 40 reenacts the common law position. 3. The issue in this s.40 is that if the defaulted party would like to terminate the contract, should he inform the other party in order for them to take action, i.e. to claim damages. This issue was resolved by the case of Dream Properties v Atlas Housing , the court held if the party would like to refuse to perform, or disabled himself from performing, he must repudiate the contract to the other party, either by expressly, by conduct or through automatic repudiation clause. Refusal to perform/ disabled himself from performing 1. When a party refuses to perform the contract it means that he wilfully intends not to perform the contract. 2. In Wong Poh Oi v Gertrude Guok & Anor [1966] , during the construction of a house, the defendant did some extra work as asked by the plaintiff. The plaintiff then refused to pay for the extra work arguing that the defendant was supposed to do it. The defendant took the refusal to pay as refusal to perform the contract and hence terminated the contract and sold the house to a 3rd party. The court
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said that it must look at the facts and surrounding circumstances to determine whether there was any intention to refuse to perform the contract. OTF, the plaintiff only disputed the amount to pay for the extra work. There was no intention to refuse to perform. Hence, it was held that the defendant was wrong in terminating the contract. 3. When a party disables himself from performing it means that he has intentionally acted in a manner so as to make the performance impossible. 4. In Universal Cargo Carriers Corpn v Citati [1957] , it was held that the defendant disables himself, there is an element of fault involved. Since it is self-induced, it cannot amount to frustration. 5. In Chin Kim & Anor v Loh Boon Siew [1970] , the defendant breached the contract. The plaintiff only sued after 4 years. The FC held that the plaintiff was not allowed to sue the defendant. 6. Promise may put an end to the contract ( depends on whether it is a breach of a condition or a warranty ) 7. When a contract is breached by a promisor the promisee may put an end to the contract. This means that he has a choice of terminating or continuing with the contract.
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  • Winter '17
  • Daniel
  • FC

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