| 释义 |
performance of contract
The carrying out of obligations under a contract. Performance by both parties discharges the contract completely; performance by one party discharges him alone. The rules relating to performance distinguish between a divisible contract and an indivisible (or entire) contract. In a divisible contract the obligations of the parties are independent of each other, so that one party can demand performance by the other without rendering performance himself. Thus a landlord, though liable to be sued by his tenant for not carrying out a repairing covenant, is not prevented by his own default from enforcing the tenant’s covenant to pay rent. Most contracts, however, are indivisible, i.e. the obligations of the parties are interdependent. Neither party can demand performance unless he himself either has performed or is ready and willing to do so. At common law, complete and precise performance was originally required, so that a party who rendered anything short of this (for example, a builder who carried out the contract work, but defectively in some respects) could recover nothing for his efforts. This extreme position was subsequently modified by the doctrine of substantial performance. A party who has substantially performed his obligations can now recover the contract price, reduced by damages awarded to the other party in respect of the defects (Hoenig v Isaacs [1952] 2 All ER 176 (CA)). A tender of performance is the equivalent of performance, so that a seller who tenders the correct goods is discharged from the contract (and entitled to damages for breach) if the buyer rejects them. Vicarious performance (e.g. by a subcontractor) is good performance, except when personal performance is demanded by the contract. See also part performance; specific performance. |