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Privity. As a general rule, only the parties to the contract can acquire rights and incur liabilities under it CASE: Beswick v Beswick [1968] CASE: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988)

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  • As a general rule, only the parties to the contract can acquire rights and incur liabilities under it

CASE: Beswick v Beswick [1968]

CASE: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988)

  • No right of action in contract exists against a person who is not a party to a contract (but a third party who knowingly and intentionally induces a breach of contract may commit a tort)

CASE: Lumley v Gye [1843-60]

methods of discharge
Methods of Discharge






Of law


Virtue of


Lapse of


types of performance
Types of Performance
  • Types of Performance
discharge by performance
Discharge by Performance

Two Types of Performance

1. Actual Performance

The parties must carry out as closely as practicable the terms of the contract

CASE: Shipton, Anderson & Co v Weil Brothers & Co [1912]

CASE: Re Moore & Co Ltd and Landauer [1921]

discharge by performance5
Discharge by Performance

2. Partial Performance

Generally, payment does not automatically follow unless the contract is divisible (a matter of construction)

CASE: Cutter v Powell (1795)

although there are exceptions:

  • if there has been free and willing acceptance of partial performance by the party receiving the benefit
  • there has been substantial performance and the cost of rectification is small

CASE: Hoenig v Isaacs [1952]

  • if one party is prevented from performing
discharge by agreement
Discharge by Agreement
  • A contract created by agreement can be undone by agreement:
    • Mutual Discharge
      • where both parties abandon their original agreement while the contract is still executory
    • Release
      • where one party has performed their obligations and there is a unilateral discharge of the agreement
    • Waiver
      • where one party leads the other party to reasonably believe that strict performance will not be insisted upon
discharge by agreement7
Discharge by Agreement
  • A contract created by agreement can be undone by agreement (cont):
    • Substitution
      • where the parties wish to continue with a contractual relationship but on terms differing from those in the original agreement, a new agreement can be substituted
    • Accord and Satisfaction
      • where one party has performed their obligations and the defaulting party is relieved of their obligations by doing something different to that which they were bound to do under the original contract
discharge by frustration
Discharge by Frustration
  • The doctrine of frustration offers exceptions to the doctrine of absolute liability.
  • To be operative, frustration can only arise where:
    • an unforeseen event outside the control of the parties has significantly changed the obligations of the parties;
    • neither party caused the supervening event;
    • neither party contemplated the supervening event; and
    • it would be unjust to hold the parties to their original contract.

CASE: National Carriers v Panalpina (Northern) Ltd [1981]

discharge by frustration9
Discharge by Frustration
  • Cases involving this doctrine fall into 5 categories:
    • Physical impossibility because of destruction of the subject matter

CASE: Taylor v Caldwell (1863)

    • Physical impossibility under a contract of personal services
    • Change in the law rendering performance impossible

CASE: Horlock v Beal [1916]

discharge by frustration10
Discharge by Frustration
  • Impossibility due to non-occurrence of an event basic to the contract

CASE: Krell v Henry [1903]

CASE: Hearne Bay Steam Boat Co v Hutton [1903]

  • Where the particular state of affairs ceases to exist

CASE: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982)

discharge by frustration11
Discharge by Frustration
  • The effect of frustration is to discharge the contract but only as to the future

CASE: Fibrosa Spolka Akcyjina v Fairburn Lawson Combe Barbour Ltd [1943]

  • Victoria has modified the common law position:
    • Frustrated Contracts Act 1959 allows expenses incurred before frustration to be recovered
discharge by frustration12
Discharge by Frustration
  • The Effect of Frustration
discharge by operation of law
Discharge by Operation of Law

This can happen via:

  • bankruptcy;
  • material alteration;
  • merger;
  • death if the contract is for personal services; and
  • discharge by lapse of time

CASE: Ballas v Theophilos (No 2) (1957)

discharge by breach
Discharge by Breach
  • Where one party fails to perform their obligations as agreed, they are liable for breach of contract.
  • Breach may be:
    • Actual breach where a party fails to perform at the time required by the contract; or
    • Anticipatory breachwhere a party threatens not to perform prior to the time required by the contract

CASE: Foran v Wright (1989)

  • The effect of breach depends on the importance of the term that is broken.
  • The remedies available to the injured party will depend on the nature of the breach.