DISCHARGEMENT OF CONTRACT
The law of contracts forms a substantial part of our various relationships that can have some sort of influence over us on an almost daily basis – even when there is no physical contract in front of us we may still be privy to some sort of contractual obligation. Alternatively, if you’re a fan of social theorists such as Jean-Jacques Rousseau, you may argue that we’re also bound by ‘the social contract’, but we digress. Getting back to our original point, the law of contracts plays an enormous role in many of our interactions and for the most part, there may be no real concern in regards to the performance of a contract and an agreement will be completed accordingly. However, this does not mean that issues won’t arise within a contractual relationship, and there may be circumstances where you may need to discharge a contractwhich can be done by either one, or all of the parties to the agreement, and can be discharged by either:
BY MUTUAL AGREEMENT
BY SUPERVENING IMPOSSIBILITY
BY OPERATION OF LAW
BY LAPSE OF TIME
BY LAPSE OF TIME
Before exploring the general ways in which a contract can be discharged, the most obvious way in which acontract will come to an end, is when all parties fulfil their contractual obligations and the contract has been discharged via performance. Easy. Exceptions to performance
Some people may be of the belief that performance of a contract includes the executing of every aspect of the contract of which the parties had agreed upon, and if performance of every part of the agreement has not been fulfilled, then the contract has not been fully performed
The common law had subsequently recognised some exceptions to the general rule other than that performance of A contract must be exact and complete according to the Terms, with the exceptions being: Substantial performance;
Acceptance of partial performance;
The law does not concern itself with trivialities (de minimis non curat lex); The performance of the contract has been obstructed;
Time for performance.
Performance could either be
ACTUAL PERFORMANCE (Section # 36)
TENDER / OFFER OF PERFORMANCE (Section # 38)
When all the obligations are fulfilled. Exceptions are the substantial performance meaning thereby that every part of the contract performed. TENDER / OFFER OF PERFORMANCE:
Performance at time and place but other party does not accept.It is equivalent to actual performance.
BY MUTUAL AGREEMENT
There is nothing preventing parties to a contractual relationship to vary or discharge the agreement, and can do so in the following ways: NOVATION : Putting a new contract in place of the old one and can be done between the original contracting parties or different parties. ALTERATION: Modification of contract with assent of both the parties. And can be done between the original contracting parties. RESCISSION / Mutual discharge: It is the abrogation of legal contract.It is where both parties agree to release one another from what was agreed upon before either party has performed any of the acts promised.It is effective from inception.There by restoring to a position if no contract had even been performed.
REMISSION is where the strict performance of the contract is no longer required, even though strict performance of the contractual agreement can still be claimed by one of the parties .It is accepting lesser than agreed by extending time or accept anyother satisfaction. WAIVER/ Release by one party: is where one party has completed their contractual promise, and agrees to release the other party from further performance of...
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