Free Law Dissertations - Section 1(2) Of The Act Provides That All Sums Paid Or Payable To Any Party
Section 1(2) of the Act provides that all sums paid or payable to any party pursuance to the contract before the time when the contract were so discharged will in the case of sums so paid be recoverable from his as money received by him for the use of the party for the sums paid and in the case of the sums so payable, cease to be so payable. However the Court may allow the party who has received payment to retain the payment made. The Act provides that ‘if the parties where the sum so paid or so payable incurred expenses in or for the performance of the contract, the court may, if it considers it just in doing so having regard to all the circumstances of the case, allow him to retain or as the case may be to recover the whole or any part of the sums so paid or payable not being an amount in excess of the expenses so incurred.’
In the case of Gamerco SA v. ICM/Fair Warning Agency Ltd where a concert was cancelled due to security issue, the Court held that the contract was frustrated and the defendant was ordered to repay the deposit.
Based on this, it is advised that Belinda would be able to claim any amount paid under the contract from Adam although Adam would be able to claim for any expenses already incurred for the purpose of performing the contract.
(633)
C) The fact that Adam has informed Belinda that he cannot performed the contract could mean that there is an anticipatory breach of contract by Adam. The section will examine whether there is any anticipatory breach and if there is any, then what are the steps should be taken by the parties.
Anticipatory breach can be defined as a situation where one party may show by express words or by implications from his conduct at some time before the performance is due that he does not intend to observe his obligation under the contract. The principle of the anticipatory breach was re-stated in the case of Yukong Line of Korea v. Rendsburg Investments Corporation of Liberia Moore-Bick J held that ‘a renunciation of the contract by one party, prior to the time for performance is not itself a breach but it gives the other party, the injured party, the right to treat as breach in anticipation and thus to treat the contract as discharged immediately. In other words, if a person says he will not perform, the law allows the other to take him at his word and act accordingly.
In the case of Hochster v. De La Tour Lord Campbell stated that between the time of contracting and the due date of performance neither party would do anything to the prejudice of the other inconsistent with the contractual relationship which had been created. In this case, it was also held that the innocent party may treat the contract as terminated and sue for damages.
Lord Wilberforce in the case of Woodar Investment Development Limited v.
Dissertations - Free Law Dissertations
