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Chapter

Cover Cheshire, Fifoot, and Furmston's Law of Contract

19. Discharge by Agreement  

M P Furmston

This chapter discusses the law on discharge by agreement. An agreement by the parties to an existing contract to extinguish the rights and obligations which have been created is itself a binding contract, provided that it is either made under seal or supported by consideration. Consideration raises no difficulty if the contract to be extinguished is still executory, for in such a case each party agrees to release his rights under the contract in consideration of a similar release by the other. The discharge in such a case is bilateral, for each party surrenders something of value. Unilateral discharge occurs when the contract to be extinguished is wholly executed only on one side – as for instance where a seller has delivered the goods but the buyer has not paid the price. A unilateral discharge is usually ineffective unless it is made under seal or unless some valuable consideration is given by the buyer. Difficult problems arise where the agreement is designed to vary the contract.

Chapter

Cover Card & James' Business Law

11. Discharge of the contract  

This chapter examines the procedures and processes involved in the discharge of a contract. It describes the situations under which a contract will become discharged and discusses the four methods of discharge, namely discharge by performance, discharge by agreement, discharge by breach, and discharge by frustration. This chapter also explains that there are cases where a contract will be automatically discharged with no possibility of continuance (such as where the contract is discharged by frustration) and there are those where the actions of one party may result in the other party being entitled to terminate the contract (for example, breach of a condition) or may simply entitle him to recover damages only (for example, breach of a warranty).

Chapter

Cover Business Law

10. Ending the Contract  

This chapter discusses other ways in which a valid contract may be discharged, aside from the successful completion of established rights and duties. It also discusses possible remedies where a party breaches the contract. Under the normal rules of contract, a party is only discharged from a contract when that party has completed obligations under it. Having completed the contract each party is free of further obligations. A failure to complete the contract may lead to a breach of contract claim, although situations exist where the parties may release each other from further obligation—referred to as discharge by agreement—or the contract may have been partially or substantially performed. This chapter examines discharge through performance and agreement, how contracts may become frustrated, and the consequences and remedies following a breach of contract.

Chapter

Cover Anson's Law of Contract

13. Discharge by Agreement  

Jack Beatson, Andrew Burrows, and John Cartwright

Contract rests on the agreement of the parties: as it is their agreement that binds them, so by their agreement they may be discharged. This chapter begins by identifying two sources of difficulty, which render the topic of discharge by agreement one of considerable artificiality and refinement, and then discusses the forms of discharge by agreement, covering release, accord and satisfaction, rescission, variation, waiver, and discharge provisions contained in the contract itself.

Chapter

Cover Anson's Law of Contract

16. Discharge by Operation of Law  

Jack Beatson, Andrew Burrows, and John Cartwright

This chapter considers the rules of law which, operating upon certain sets of circumstances, will bring about the discharge of a contract. The discussions cover mergers, discharged by judgment of a court, alteration or cancellation of a written instrument, and bankruptcy.

Chapter

Cover Anson's Law of Contract

15. Discharge for Breach  

Jack Beatson, Andrew Burrows, and John Cartwright

If one of the parties to a contract breaches an obligation which the contract imposes, that party is in breach of contract. The breach may consist in the non-performance of the relevant obligation, or its performance in a manner or at a time that fails to comply with the requirements of the contract. This chapter sets out the rules governing the discharge of a contract by breach. It shows that the breach may give rise to discharge only if it is sufficiently serious in its effects (a breach which ‘goes to the root of the contract’, or a ‘repudiation’ of the contract) or if it is a breach of a sufficiently serious term of the contract (breach of ‘condition’).

Chapter

Cover Complete Land Law

21. Escaping from Restrictive Covenants  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the various options available to developers whose plans are obstructed by restrictive covenants. It covers ignoring restrictive covenants; attempting to buy out the dominant owners; identifying who can enforce a restrictive covenant; obtaining a definitive list of dominant owners; modification or discharge of a covenant under s84(1) of the Law of Property Act 1925; grounds for discharge or modification of restrictive covenants (obsolete, obstructs some reasonable user of the land, practical benefit, and public interest); and balancing interests of the parties.

Chapter

Cover Mental Health Law: Policy and Practice

11. Ending Compulsion under the Mental Health Act 1983  

This chapter examines the various ways in which a period of compulsion, whether in hospital or in the community, imposed under the terms of the Mental Health Act (MHA) 1983, can be brought to an end. The discussions cover the discharge of Part II patients from hospital, guardianship, or a community treatment order; discharge of Part III patients; mental health review tribunals; substantive powers of discharge; tribunal and decisions; and challenging tribunal decisions.

Chapter

Cover Poole's Casebook on Contract Law

12. Discharge by frustration: subsequent impossibility  

Robert Merkin and Séverine Saintier

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.

Chapter

Cover Poole's Textbook on Contract Law

13. Breach of contract  

Robert Merkin, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. There are four ways to discharge a contract: by performance, agreement, frustration, or breach. The standard of performance required in relation to each contractual obligation needs to be identified because a failure to perform to the required standard constitutes a breach. In the absence of lawful excuse, a breach of contract arises if a party either fails or refuses to perform a contractual obligation imposed on that party by the terms of the contract or performs a contractual obligation in a defective manner. While every breach of contract will give rise to a right to claim damages, the contract will remain in force unless the breach constitutes a repudiatory breach. The chapter examines the types of repudiatory breaches and the election to terminate or affirm, together with an assessment of the law governing the identification of a repudiatory breach and the consequences of terminating when the breach is not in fact repudiatory. It also examines the options available to the non-breaching party when an anticipatory breach occurs.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

18. Performance and breach  

This chapter covers the two contractual situations of performance and breach. First, it recognizes that most contracts are performed and completed, with the consequence that liability ceases and the obligations under the contract are discharged by performance. Some obligations may be classed as conditions precedent, or as conditions subsequent, and the order for performance may be provided for by contingent conditions. The relevance of the entire contracts rule is noted. Second, the chapter explores the injured party’s right to terminate for breach. The right to terminate for repudiatory breach and the right to terminate for anticipatory breach of contract, are both illustrated through the relevant case law which highlight the possible options available to an injured party and the consequences which may follow.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

15. Discharge of a contract for breach  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the circumstances in which a contract can be terminated or discharged by one party following breach or incomplete performance by the other party, covering entire obligations. It explains that breach of contract does not automatically bring a contract to an end and that termination of a contract for breach is not the same as rescission. This chapter also discusses the two sorts of situation in which the innocent party can terminate the contract for the other party’s breach, namely breach of condition or serious breach of an innominate term, and following repudiation, and considers the innocent party’s option to elect whether to terminate the contract or keep it alive.

Chapter

Cover English Legal System

14. Sentencing  

This chapter explains the aims of sentencing and discusses the types of sentence that may be imposed upon a convicted offender. The main sentencing options available to a court when an adult is convicted of a criminal offence include: absolute and conditional discharges, fines, community orders, and imprisonment. Custodial sentences include extended determinate sentences, the new sentence for offenders of particular concern, and life sentences. A custodial sentence has punishment as its primary purpose, whereas a community order focuses on reform and rehabilitation. The chapter outlines the key types of sentence that can be imposed upon youth offenders and discusses restorative justice initiatives. It explores the factors to which the judge or magistrates must have regard when passing sentence, including maximum/minimum sentences, the nature and seriousness of the offence, sentencing guidelines and pre-sentence reports.

Chapter

Cover Sealy and Hooley's Commercial Law

19. Bills of exchange  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter focuses on bills of exchange, especially in the context of international trade. It first provides an overview of how bills of exchange are used as a method of payment before discussing the relevant provisions of the Bills of Exchange Act 1882. It then considers the definition of a bill of exchange, how a bill of exchange is transferred, and persons entitled to the benefit of the obligation on the bill. It also examines the general principles governing liability on the bill of exchange as well as the enforcement and discharge of the bill. Finally, it looks at mistaken payment, focusing on cases where the payment was received in good faith and in ignorance of the mistake.

Chapter

Cover Environmental Law

14. Environmental permitting and integrated pollution prevention and control (IPPC)  

Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes

This chapter deals with the latest in a long series of attempts to streamline or integrate various industrial pollution control systems—a regime that began by bringing together integrated pollution prevention and control and waste management licensing but which now extends to water and groundwater discharge permits and controls on radioactive substances. The environmental permitting regime provides a broad, largely procedural, framework within which the substantive provisions of various European Directives are implemented across a range of industrial installations and waste management facilities. As such, it introduces few general changes of substance, merely reflecting, as many integrative measures have done, structural and administrative changes, and a reordering of what was already there.

Chapter

Cover Poole's Casebook on Contract Law

12. Discharge by frustration: subsequent impossibility  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.

Chapter

Cover Contract Law Concentrate

5. Terms and breach of contract  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses how to identify the contractual obligations assumed by the parties in their contract, distinguishing terms (promises) and representations (non-promissory inducements to contract), and identifying the express and implied terms. It also looks at standards of performance, how to identify broken promises as a prelude to considering the remedies for breach of contract, and whether it is possible to opt not to continue to perform further contractual obligations following the other party’s breach.