CONTRACT LECTURE 11
C STRICKLAND
DISCHARGE OF CONTRACT
Total time = 48 mins 21 secs
Track/slide 5 2.54
Secondly, the harsh rule of Cutter v Powell 1795 may be avoided where the party in breach
of a contract regarded as an entire obligation contract is only ‘slightly’ in breach
If the party in breach is in fact only guilty of a ‘trivial’ breach of contract, the court may allow
him to recover payment for the ‘substantial’ part of the job done. In Hoenig v Isaacs 1952
there was a contract to decorate and furnish a flat. On completion of the work the decorator
was owed £350 but the defendant refused to pay it saying that the contract was for an ‘entire
obligation’ and some of the work was defective ie. breach of contract as regards completing
the work with reasonable skill and care. However, since the defects were only TRIVIAL and
would only cost £55 to put right, and the total cost of the contract was £750, the decorator
could get the additional payment minus the £55 ie. £295.
Note, that this only applies to TRIVIAL defects from the contract obligation – so in the
Bolton v Mahadeva case, the breach was TOO SERIOUS to let the plumber get any money.
Beatson notes, in ‘Anson’s Law of Contract’, 27th edition, page 547, that:
‘Entire obligations are, however, the exception rather than the rule. The obligations in
most bilateral contracts are “divisible” in the sense that the breach of any one or more
of them will not necessarily constitute a ground for discharge... A failure by one party
precisely to perform its obligations under the contract will give a right of action in
‘damages’ to the other; but it will not necessarily “discharge” the innocent party from
the performance of its own obligations under the contract.’