9084 · 3.3.1
Common exam mistakes on 9084 Performance. Learn what loses marks, then practise the topic with Examiner’s Ink.
In a problem question, first identify if the contract is 'entire'. If so, apply the strict rule from Cutter v Powell. Then, systematically consider the exceptions. Is performance substantial? Use Hoenig and Bolton to argue both ways, comparing the cost of cure to the contract price. Is the contract divisible? Look for evidence of stage payments or instalments. This structured approach will ensure you cover all relevant legal principles.
No, probably not. The doctrine of substantial performance only applies to defects that are minor in nature. If the work is fundamentally defective and fails to achieve the main purpose of the contract (like the central heating in Bolton v Mahadeva), the court will rule that performance was not substantial. In this case, the builder would not be able to claim any payment under the contract.
Not exactly. The doctrine is a balance. The innocent party must pay the contract price, but they are entitled to deduct the amount it would cost to fix the defects (the 'cost of cure'). This ensures they get what they bargained for in monetary terms and are not left out of pocket. The party in breach is paid for the benefit they have conferred, but they are held responsible for their defective performance.
No, this is a common misconception. The default assumption in English law is that a contract is 'entire', meaning full payment is only due upon full performance (Cutter v Powell). You can only pay for a completed part if the contract is 'divisible' or 'severable' – meaning it was structured from the outset with separate, payable stages. Without evidence of this, partial performance of an entire contract entitles the performer to nothing.
If the other party prevents you from completing your performance, they are in breach of contract. You are discharged from your remaining obligations and have two main options: 1) Sue for damages for breach of contract (e.g., for loss of profit), or 2) Claim a reasonable sum for the work you have already done on a quantum meruit basis, as in Planche v Colburn.