- •§1. Place op contract in jurisprudence. 3
- •§ 2. Obligation.
- •§2. Place of contract in jurisprudence. 5
- •§2. Place of contract in jurisprudence. 9
- •§ 2. Acceptance must he absolute, and identical ivith the terms
- •§ I. Agreement,
- •§ 3. II proposal which has not been accepted does not affect the Till accept-
- •§ 5. It proposal may lapse otherwise tJian by revocation as
- •§ 6. Proposal and Acceptance need not necessarily he written Contracts
- •§ 7. A proposal need not be made to an ascertained person,
- •§ I. Contracts of Record.
- •§ 2, Contract under Seal,
- •§ 3. Simple Contracts required to be in writing.
- •§ 4. ConsideItATiaN.
- •§ I. Political or Professional Status,
- •§ 2. Infants,
- •§ 3. Married women.
- •§ 4. Corporations.
- •§ 5. Lunatic and drunken persons.
- •§ 2. MlSbepbesentation.
- •§ 3. Fraud.
- •§ 4. Duress.
- •§ 5. UamuE Influence.
- •§ I. Nature of Illegality m Contract.
- •§ 18 Upon Stock ExchiEknge transactions is well summarised in the
- •§ 2. Effect of Illeoalitt upon Contracts in
- •§ I. Assignment by act of the parties.
- •§ 2. Assignment of contractual rights and liabilities by
- •§ I. Froof of Document,
- •§ 2. Evidence as to /act cf Agreement.
- •§ 3. Evidence as to the terms of the Contract,
- •§ I. General Rales,
- •§ 2. Rvlea 0/ Law and Equity as to Time and Penalties,
- •§ I. Waiver.
- •§ 2. Svhstituted Contract
- •§ 3. Provisions for DischcMrge,
- •§ 1. Position op pabties whebe a Contbact
- •§ 2. Forms of Discharge bt Breach.
- •§ 3. Eemedies fob breach of Contract.
- •§ 4. DiSghaboe of RiOht of AcTion abisiNa
§ 1. Position op pabties whebe a Contbact
IS DISGHABQED BY BbEACH.
In a contract between A and X, a breach by X might be Exonera-
considered to be a discharge of the contract if Ay in bringing perform™
action upon it, was not required to allege that he had per- *'^*^®-
formed or endeavoured to perform that which was still due
from him under the contract ; or if X could not successfully
use such non-performance by A either as a cause of action
or a ground of defence.
Further, where X made default after A had done all or Right to
a part of that which he promised, the contract was discharged ^{^gfnatus
by such default if A could sue for the value of that which assumpsit.
he had done in indebitatus assumpsity or upon a new and
distinct contract arising upon the acceptance of money, goods,
or services offered by the plaintiff and accepted by the
defendant.
This needs a short explanation.
Before the Judicature Acts came into operation, where an
action was brought upon a contract arising on considera-
tion executed, that is a promise, acted or uttered, to pay
for money, goods, or services offered and accepted, the
plaintiff might state his case in certain short forms known
as the indebitatus counts. These, which were an adaptation the^!L^t-
of the action of Assumpsit to the subject-matter of the ^^^^^
counts.
268
DISCHARGE OF CONTRACT.
PartV.
See App. A.
P- 323-
When ap-
plicable to
special
contract.
Ante, p. 83.
Per Cur.,
Beverley v.
Lincoln Gas
Ught & Coke
Ca, 6 A. & E.
837.
action of Debt, did no more than state a money claim existing
for money due, goods supplied, or services rendered.
In certain cases these counts were applicable to a clai^I
arising out of a special contract, that is a contract arising
upon express promises made on either side, but they were
so applicable only where the contract was dischctrged hy
breofh.
If A had performed all that he had promised in a contract
made with X, and there remained only a money payment
due from X resulting in a present liability in which X made
default by non-payment, A might Bue X in the /orm of an
indebitatus count. This means that A might sue upon a
new and distinct contract, arising upon the offer and accept-
ance of that which he had performed. The performance of
the original contract was so fieir complete that nothing re-
mained to be done but a payment to be made by JT to ii :
the payment was presently due ; default discharged the con-
tract, and A might sue, not on the special contract as having
been made and broken, but upon a contract arising from
conduct, from the offer of an act, its acceptance, and a
consequent implied promise to pay its worth, such as we
described in speaking of executed consideration.
* The principle as to the proper form of declaring where
the original contract has been executory, but the period of
credit has expired, or condition has been performed, is, not
that the law alters the mode of declaring on the original
contract and states it not according to the fact, but that it
conclusively infers that simple contract to pay the price for
goods sold and delivered which wovld a/rise upon thefatts of
a sale and delivery without a/ny special circtmistances accom-
panying them. He who seeks to disturb that inference must
not content himself with merely showing conditions, or other
special provisions forming part of the contract at the time of
its being entered into : he micst show them in existence and
operation a^ the time of action brought : if not, they must be
Chap. III. § I. BY BREACH. 269
struck out of consideration and the contract treated as
originally simple, unconditional, and executed.'
A similar practice prevailed where, A ' having done a A qruant^m
part, though not all that he was bound to do under the
contract, X committed a breach which amounted to a dis-
charge. If that which A had done could be represented in
a claim for money payment, A was entitled to sue, not only
on the special contract, but in indebitatfM assumpaitf for a
quardum meruit or the value of so much as he had done.
' If a man agrees to deliver me one hundred quarters of
com, and after I have received ten quarters, / decline taking \ll^^* ^ J-
any more, he is at all events entitled to recover against me ^ ^"*^' "^
the value of the ten that I have received.*
But the right to sue in this form on a quantum meruit When it
is frequently and emphatically stated to depend on the fact ^^ upon.
that the contract has been discharged. On the other hand, it «"!>« v.
° ' Heightman,
is laid down * as an invariably true proposition, that where- ' ^*^'' '^^
ever one of the parties to a special contract not under seal
has in an unqualified manner refused to perform his side
of the contract, or has disabled himself from performing
it by his own act, the other party has thereupon a right
to elect to rescind it, and may, on doing so, im/mediatdy sue
on a quantwm meruit, for anything which he had done under
it previously to the rescission.' a sm. l. c. ai.
It is possible that A may have done nothing under the
contract which can be estimated at a money value, or that
the default made by X is not such as can be stated in the
form of a money claim. Then if the breach amount to a
discharge, A is exonerated from such performance as may
still be due from him, and is entitled to sue at once upon the
special contract for such damages as he has sustained.
Though the rules of the Judicature Act make it doubtful order xix.
rule 4.
whether under the new system of pleading the short forms of
declaration known as the indebitatus counts are any longer
270
DISCHARaE OP CONTRACT.
PartV.
See p. 334. admissible, yet the relations of the parties are not thereby
substantially altered.
Rights of
party dis-
charged.
Behn v.
Bumess,
3 B. & S. 756.
Cort V. Am-
berfjfate Rail'
way Co.,
17 Q. B. 137.
Planch^ V.
Colbum,
8 Biag. 14.
Thus where a contract between A and X is discharged by
the default of X, A may —
(a) Consider himself exonerated from any further perform-
ance which may have been due on his part ; and successfully
defend an action brought for non-performance :
(0) Sue at once upon the contract for such damages as
he has sustained by its breach, without being obliged to show
that such performance has been done or tendered by him. f
(y) Lastly, if he has done all or a portion of that which he
promised, so as to have a claim to a money payment for such
performance, he may deal with such a claim as due upon a
different contract arising upon a promise understood from the
acceptance of an executed consideration.