Download - WEEK 6 subtopic 5.ppt
-
8/16/2019 WEEK 6 subtopic 5.ppt
1/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
SUBTOPIC 5:
DISCHARGE & REMEDIES
-
8/16/2019 WEEK 6 subtopic 5.ppt
2/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
2.5 Discharge of ree!ies
Source: Syed Ahmad Alsagoff, Principles of the law of contract in Malaysia, Lexis Nexis, 200! "ontract Act #$0%
• &hen contract is 'rought to an end or dissol(ed orterminated%
• )'ligations under contract can 'e discharged in * ways:
•Perfora"ce• Breach of Co"#rac#
• Agreement
• +erm of contract
• )peration of Law
• octrine of -rustration
-
8/16/2019 WEEK 6 subtopic 5.ppt
3/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
PER$ORMA%CE
•As a general rule, performance of a contract must 'e exact and precise and should 'e in accordance with what the parties had
promised%
•Perform 'y whom./ y parties: S '()* CA )+5, pro(ides that parties to a
contract must either perform or offer to perform their
respecti(e promises, unless such performance has
dispensed with any law%
/ S. '(2* CA )+5, 1 epresentati(e if parties died
Source: Syed Ahmad Alsagoff, Principles of the law of contract in Malaysia, Lexis Nexis, 200! "ontract Act #$0%
-
8/16/2019 WEEK 6 subtopic 5.ppt
4/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
• Performance may 'e from a third party and not necessarily
from the promisor:
/ S. -2 CA )+5, pro(ides that 6when a promisee accepts performance of the promise from a third person, he cannot
afterwards enforce it against the promisor7%
Source: Syed Ahmad Alsagoff, Principles of the law of contract in Malaysia, Lexis Nexis, 200! "ontract Act #$0%
-
8/16/2019 WEEK 6 subtopic 5.ppt
5/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
Perfore! / 0ho1
• S. '()* Parties
• S. '(2*1 epresentati(e if parties died• S. -)1 re8uirement tt performance 'y promisor himself
– Promisor must perform
– 3n other case, may employ competent person to perform
– 3ssue: consideration may mo(e from other person%
Source: "ontract Act #$0%
-
8/16/2019 WEEK 6 subtopic 5.ppt
6/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
Tie & P3ace of Perfora"ce
• S. -45,
• 9 at specified time ; place
• 3f time < specified1 any reasona'le time (s.-4*
• 3f place < specified1 promisee must specify (s. 5, & 5)*
Source: "ontract Act #$0%
-
8/16/2019 WEEK 6 subtopic 5.ppt
7/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
Perfora"ce of Reciroca3 Proise
• S. 5255• Simultaneous performance
• Promisor need not perform his promise unless,
• Promisee is ready=willing to perform his promise
Source: "ontract Act #$0%
-
8/16/2019 WEEK 6 subtopic 5.ppt
8/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
BREACH
• )ccurs when party fails=refuses to perform his contractual
o'ligation
• efaulted party (% innocent party
• 3nnocent has 2 options:
– epudiate 1 relie(ed from performance ;
1 entitled to damages
– "ontinue contract > entitled to damages
1 'ut must perform
Source: Syed Ahmad Alsagoff, Principles of the law of contract in Malaysia, Lexis Nexis, 200
-
8/16/2019 WEEK 6 subtopic 5.ppt
9/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
2 O#io"s #o I""oce"# Par#/:
). Discharge
– May refuse further performance of his o'lig7n
– esist any action 'y defaulting party
–eco(er any money tt he has paid
– Sue for damages if suffered any
– Alternati(ely, sue on 8uatum meruit for (alue of wor?done=goods supplied
2. 6 Discharge
– Must perform his contractual o'lig7n – 3f nature of 'reach disentitles to discharge @warranty1
entitled to damages
Source: Syed Ahmad Alsagoff, Principles of the law of contract in Malaysia, Lexis Nexis, 200%
-
8/16/2019 WEEK 6 subtopic 5.ppt
10/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
• Not all 'reach ena'les to terminate contract
• epends on nature of the term 'reached
Source: Syed Ahmad Alsagoff, Principles of the law of contract in Malaysia, Lexis Nexis, 200%
-
8/16/2019 WEEK 6 subtopic 5.ppt
11/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
REMEDIES $OR BREACH O$ CO%TRACT
+he remedies a(aila'le for 'reach of contract are:
). DAMAGES
2. 7UA%TUM MERUIT
. SPECI$IC PER$ORMA%CE-. I%8U%CTIO%
% 5S"3SS3)N
*% 5S+3+4+3)N
B% AN+)N P3LL5 )5
Source: Lee Mei Pheng ; 3(an Ceron etta, "ommercial law, )xford -aDar, 20##%
-
8/16/2019 WEEK 6 subtopic 5.ppt
12/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
). DAMAGES
• +he main purpose of damages is to ena'le the innocent party to
recei(e monetary compensation from the party responsi'le for the
'reach of contract%
• amages are not awarded to punish a wrongdoer, 'ut rather to put
the inDured party 'ac? in the position that they would ha(e occupiedif the contract had 'een performed as originally intended%
• amages are calculated on the 'asis of loo?ing at what the position
should ha(e 'een properly performed%
• S. 4- C.A. )+5,
Source: Lee Mei Pheng ; 3(an Ceron etta, "ommercial law, )xford -aDar, 20##%
RANACO EDUCATION & TRAINING
-
8/16/2019 WEEK 6 subtopic 5.ppt
13/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
2. 7UA%TUM MERUIT
• Literally: as much as he has earned
• &here Plaintiff sues for unspecified amount for his ser(ices
• "oncept recogniEed in S. 4) C.A. )+5,
• ifferent from amages: – amages1 "laim for compensation for a loss
– FM > "laim for reasona'le remuneration
Source: Lee Mei Pheng ; 3(an Ceron etta, "ommercial law, )xford -aDar, 20##%
RANACO EDUCATION & TRAINING
-
8/16/2019 WEEK 6 subtopic 5.ppt
14/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
A9ai3a3e he":
#% 5xpress=implied agreement to pro(ide ser(ices 'ut <
agreement to price
2% Parties < perform o'ligation under contract, 'ut a new
contract inferred from their conduct to ha(e replaced the
original1 FM for wor? done
G% "ontract terminated 'y 'reach after performance of
o'ligation 'y one party1 sue on FM for (alue of wor?
done
H% Person is pre(ented from completing his o'ligation 'y
other party%
Source: Lee Mei Pheng ; 3(an Ceron etta, "ommercial law, )xford -aDar, 20##%
RANACO EDUCATION & TRAINING
-
8/16/2019 WEEK 6 subtopic 5.ppt
15/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
. SPECI$IC PER$ORMA%CE
• An order of court re8uiring a party to perform to put the
parties in position which due performance of their o'ligation
would ha(e placed them%
• 0he" secific erfora"ce a9ai3a3e1
#% reach of S ; P of land contract > amages < ade8uate to
compensate
2% Su'Dect matter of contract is rare=uni8ue, e%g% anti8ue car >
damages < ade8uate
G% 5xceptional case where damages would not 'e ade8uate
RANACO EDUCATION & TRAINING
-
8/16/2019 WEEK 6 subtopic 5.ppt
16/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
-. I%8U%CTIO%
• A" or!er of Co;r# #o rohii# #hrea#e"e! or co"#i";i"gi33ega3 co"!;c# of cer#ai"
-
8/16/2019 WEEK 6 subtopic 5.ppt
17/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
7UI=
#% &here a 'reach of contract occurs the innocent party canusually choose whether or not to terminate the contract
@+rue = -alse
2% &hich one of the following is %OT a method 'y which
a contract can 'e discharged:
a% "onsideration
'% Performance
c% -rustration
d% Agreement
RANACO EDUCATION & TRAINING
-
8/16/2019 WEEK 6 subtopic 5.ppt
18/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
3. 3nDunction is an order of "ourt to prohi'it threatened orcontinuing illegal conduct of certain ?inds
@+rue = -alse
H% &hich one of the following is %OT a condition of
inDunction:
a% amages are ade8uate
'% +here is danger that, unless restrained, efendant will
'reach the contract or continue with the 'reach
complained c% amages must 'e shown to 'e inade8uate
d% Plaintiff must ha(e an interest to protect
RANACO EDUCATION & TRAINING
-
8/16/2019 WEEK 6 subtopic 5.ppt
19/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
% An order of court re8uiring a party to perform to put
the parties in position which due performance of their
o'ligation would ha(e placed them%
@+rue = -alse
*% +he following are situations when specific
performance a(aila'le e>ce#:a% reach of S ; P of land contract1 damages
inade8uate
'% Su'Dect matter of contract is rare=uni8ue
damages not ade8uatec% 5xceptional case where damages would not 'e
ade8uate
d% amages are ade8uate
RANACO EDUCATION & TRAINING
-
8/16/2019 WEEK 6 subtopic 5.ppt
20/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
")N+3N45
B% Performance may 'e from a third party and notnecessarily from the promisor @+rue = -alse
I% Performance may not 'e performed 'y representati(e if
parties died @+rue = -alse
$% amages are awarded to punish a wrongdoer @+rue =
-alse
#0% Fuantum Meruit a(aila'le when a person is pre(entedfrom completing his o'ligation 'y other party @+rue =
-alse
RANACO EDUCATION & TRAINING
-
8/16/2019 WEEK 6 subtopic 5.ppt
21/21
RANACO EDUCATION & TRAINING
INSTITUTE
LAW 243 COMMERCIAL LAW
Tha"< /o;?