No right to perform a contract?

Research output: Contribution to journalArticle

Abstract

This thesis offers an alternative outlook on the decision of a contractual party to reject the benefit of the contract when he is no longer interested in the other party’s perfor mance It is an attempt to justify such course of action by challenging the proposition that one is always entitled to perform one’s own contractual promises. This shall be done ia tbe context of the controversial decision offlue House ofLords in White & Carter (Coundils) v McGregor [1962} AC 413, a case where the insistent performer happened to be able to complete his part of the contract without the need for his customer's cooperation and even against his expressed will. in a large number of cases the provider of a service will have no other interest in actually performing his part of the contract beyond that of securing his right to the full contract price. This thesis argues that whenever that is the case the courts should acknowledge both the service recipient’s right to renounce the benefit ofthe contract and his power to prevent the unwanted supply ofservices, whether bywords or conduct. The service provider who has been discharged from his duty to perform will be adequately protected so long as bis right to the fuil contract price is not at stake. He has no need for a right to perform in its proper sense. However, he shoúld not end up better off than he would have been had he actually performed his part of the contract. Therefore, the abdicating party should be allowed to deduct from the contract price by way of set-off whichever sums the former has saved or otherwise made as a consequence ofhis early release.
Original languageEnglish
Pages (from-to)3-74
Number of pages72
JournalThemis - Revista da Faculdade de Direito da Universidade Nova de Lisboa
Publication statusPublished - 2006

Keywords

  • Contracts
  • Contract law
  • English law

Fingerprint Dive into the research topics of 'No right to perform a contract?'. Together they form a unique fingerprint.

  • Cite this