chapter  13
Discharge of Contracts
Pages 22

The general rule is that a promisor is not discharged from his contractual obligations unless he has completely and precisely performed the exact thing he has agreed to do. Where he has only partially carried out his obligations, there is no discharge. For instance, if a seller delivers to the buyer less than the agreed quantity of goods, the buyer may reject them; 1 similarly, where the seller delivers more than the quantity ordered, the buyer may reject the whole consignment, and cannot be required to select the correct quantity from the bulk delivered. 2 And where B agreed to purchase 3,000 cans of fruit from S, to be packed in cases containing 30 cans, and on delivery it was discovered that part of the consignment had been packed in cases containing 24 cans, B was held to be entitled to reject the entire consignment, notwithstanding that the correct quantity of cans had been delivered. 3 Also, failure by a party to observe a time stipulation may entitle the other party to repudiate the agreement. Thus, for example, where a contract for the sale of a fl at required the purchase price to be tendered by ‘5pm’ on a certain day, and the purchaser tendered it at 5.10 pm, it was held by the Privy Council that the vendor was entitled to repudiate the agreement and retain the deposit paid by the purchaser. 4

Further, a party who has only partially performed his obligations cannot recover anything for the work he has done. Thus, for example, a building contractor who has agreed to construct a house for a lump sum, and who abandons the work after erecting 80 per cent of the building, is not entitled to any remuneration, 5 unless the contract provides otherwise. The leading case is Cutter v Powell . 6 Here, the defendant agreed to pay Cutter 30 guineas provided that he ‘proceeded, continued and did his duty’ as second mate on a ship sailing from Jamaica to Liverpool, England. The voyage began on 2 August. Cutter died on 20 September, 19 days before the ship arrived at Liverpool. An action by Cutter’s widow to recover a proportion of the money failed, as Cutter had not completely performed his obligations under the contract.