The entire contract rule the general rule is that the parties must fully perform the

obligations to contract according to provisions under section 37 of the Law of contract Act 1
where the parties to a contract must perform their respective promises, unless is dispensed
with or excuse of law or this act, even if the party fails to perform entirely, the other need pay
nothing at all even if shortfall in performance actually causes no hardship clearly, the entire
performance rule has the potential to cause injustice, as can be seen in the case of Cutter v
Powell(1795). A sailor had contracted to serve on a shipping travel from Jamaica to Liverpool.
He was to be paid 30 guineas for the voyage, payable when the ship arrived in Liverpool but he
died during the journey. His widow sued for wages up until his death, but her claim was not
successfully. The court held that the contract required entire performance and, as he had not
completed performance she should claim nothing .also see the case of Chapakazi building
contractor V parokia ya kiwanja cha ndege2

The rule can also allow parties who wish to escape from what has come unprofitable
contract to do so by taking advantage of most minor departure from its term in Re MOORE &
Co ltd and Landauer & Co (1921) the contract concerned on the sale of canned fruits, which
were to be packed in cases of thirty tins, On delivery, it was discovered although the correct
number of tins has been sent, about half the cases contained only 25 tins each this actually
made no difference to all to the market value of the goods, but the buyers pointed out that the
sale was covered by the sale of goods Act which stated that goods sold by description must
correspond with the description. The delivery sent clearly did not, and the buyers were
therefore entitled to reject the whole consignment.

Therefore, if a contract requires entire performance, and a party fails to perform the
contract in its entirely, he or she is entitled to nothing under the contract from the other party.
in practice, contracts requiring entire performance are the exemptions rather than the rule .
There is several ways in which harshness of the rule is mitigated:-

●Substantial performance

1
[CAP.345 R.E. 2019]
2
[1983] TLR 252
Established in Boone v Eyre (1779) by Lord Mansfield, this doctrine allows a party who
has performed with only minor defects to claim the price of the work done, less any
money the other party will have to spend to put the defects right. The doctrine will only apply
where the claimant has breached a warranty, or has breached an innominate term
in a way that is not serious; it cannot be used where the claimant has breached a condition of
the contract.
Substantial performance can be understood by contrasting two cases. In the first,
Hoeing v Isaacs (1952), an interior decorator contracted to refurbish a flat for £750. The
defendant had paid £400 in advance, but then refused to pay the remaining £350, arguing that
the design and workmanship were defective. The court agreed that there were
problems with the work done, but the cost of putting these right would only be £56.
Consequently it was held that the decorator had substantially performed, and was entitled
to the balance of the contract price, less the £56 needed to put right the defects.
In the second case, Bolton v Mahadeva (1972), a contractor had agreed to install a central
heating system for £560. When the work was done, it was found that the system was unable to
heat the house adequately, and emitted fumes. It would cost £174 to remedy these defects.
The plaintiff claimed the contract price, less £174, on the basis that he had substantially
performed, but the Court of Appeal rejected the claim. The proportion of the contract price
required to put the work right was clearly greater than that in Hoeing, and the court considered
that substantial performance had not taken place.
Small domestic building contracts are usually treated as requiring entire performance.
Builders carrying out such work have to complete all the work contracted for before they
are entitled to be paid.

●Severable contracts

A contract is said to be severable where payment becomes due at various stages of

performance, rather than in one lump sum when performance is complete. Most contracts of
employment are examples of this: employees are paid weekly or monthly, not all at once when
they finally leave the company. Major building contracts usually operate in a similar way, with
installments falling due as various stages of construction are completed.

In a severable contract, the price for each stage can be claimed when that stage is completed,
even though the party concerned may be in breach of the contract for not completing
subsequent stages – so if you take on a child-minder for the six-week school holidays and pay
weekly, the child-minder can claim the first week’s pay even if they then refuse to work the
following five weeks.
Whether a contract is entire or severable is a question of construction.

●Voluntary acceptance of partial performance

In some cases, while a contract may not originally have been intended to be severable ,one
party may later agree to accept and pay for part-performance from the other. Where such an
agreement can be inferred from the circumstances, the claimant sues on a quantum meruit, to
recover the cost of such performance as has been provided (see p. 360). The
courts will only infer an agreement to accept and pay for part-performance where the party
making the promise had a genuine choice – so, for example, this could not apply in Cutter v
Powell, because the sailor was hardly in a position to offer the ship owners the choice of
accepting part-performance or not.
The principle can be seen in Sumpter v Hedges (1898). A builder agreed to construct two
houses and a stable on the defendant’s land for £565. However, he abandoned the project after
completing £333 worth of work, so the defendant had to complete the building himself, and did
so using materials left behind by the builder. The builder claimed on a quantum meruit for work
done and materials supplied. The claim for the work failed; the defendant was not choosing to
accept part-performance and finish the job himself; he had no real alternative but to complete
the building, which would otherwise be just a useless mess on his land. However, he did not
have to use the materials left behind, and so the builder was allowed to claim for these.
●Prevention of performance by other party

Where one party performs part of the agreed obligation, and is then prevented from
completing the rest by some fault of the other party, a quantum meruit can be used to claim
the cost of the work done.
In most of these cases, the innocent party can alternatively claim damages for breach
of contract. This may be a higher amount, but there are circumstances in which a quantum
meruit is more useful. An example is Planché v Colburn (1831) where the plaintiff was
contracted to write a book on costume and ancient amour, for a fee of £100. After he had
begun writing, the defendants decided to cease publishing the series of which the book was to
form a part. The author was able to recover £50 on a quantum meruit.
Where one party cannot perform without the other’s cooperation, rejection of an offer to
perform (also called a tender of performance) will release the party tendering performance
from any further obligation. In Startup v Macdonald (1843) the plaintiffs agreed to sell ten tons
of oil to the defendants, to be delivered by the end of March. On the last day of March, the
plaintiffs arrived with the oil at 8.30 pm, but the defendants refused to accept the delivery,
saying it was too late in the day. The plaintiffs sued for damages, and were successful. The court
held that they had done all they could to

●Breach of terms concerning time

What is the position when one party performs late, but in all other respects as agreed in the
contract? Late performance will always amount to a breach of contract giving rise to a right to
damages. It will only give rise to a right to terminate the contract if the delay constitutes a
substantial failure to perform, or if the time of performance is treated as being ‘of the essence’.
When time is of the essence, any failure to perform on time justifies the termination of the
contract, even if little or no hardship is caused.
There are three main ways in which a contract may be classified as one in which time
is of the essence. First, the parties may explicitly state this in their agreement. Secondly, it may
be inferred from the nature of the contract, or the circumstances surrounding it.
Therefore, in a contract to sell goods which quickly go off, or the price of which fluctuates very
rapidly, time is likely to be of the essence. For some types of contract, the rules on time
stipulation are made by statute – for example, the Law of Property Act 1925, s. 41 states that
time is not of the essence in contracts for the sale of land.
The third situation is where a contract is not originally one in which time is of the essence but,
following a delay in performance, a contracting party gives notice of a time limit on
performance. The contract then becomes one for which time is of the essence.
This was the case in Charles Rickards Ltd v Oppenheimer (see p. 103).
The current position was developed by the House of Lords in United Scientific Holdings Ltd v
Burnley Borough Council (1978). The defendants in the case were landlords of premises leased
by the tenants under a 99-year lease running from 31 August For the first ten years the rent to
be fixed, but there was provision for periodicVicarious performance
Is a contract discharged if the contractual obligations of one of the parties are, at that party’s
request, performed by someone else? The answer depends on the type of contract. The general
rule is that the other party cannot object to such vicarious performance unless it prejudices
their interests. If the service contracted for is one which relies on the skill or judgment of one
party, the other can insist on personal performance.
Obvious examples are employment contracts, or a contract to paint a picture, or performing a
concert. Clearly, a contract must also be performed personally if that is specified in the terms or
if, by implication, the terms prohibit vicarious performance. In Davies v Collins (1945) the
defendant accepted a uniform for cleaning, under a contract stating that: ‘Whilst every care is
exercised in cleaning . . . garments, all orders are accepted at owners’ risk.’
The defendant sent the uniform to be cleaned by a sub-contractor, who lost it. It was held that
this was a breach of contract, because the words ‘every care is exercised in cleaning’ excluded
the right to perform the cleaning operation vicariously.
Where vicarious performance is permitted, liability for performance nevertheless remains with
the original contracting party. In Stewart v Reavell’s Garage (1952) the plaintiff took a 1929
Bentley to the defendants’ garage, to have the brakes relined.
The defendants suggested that the work should be done by a sub-contractor and the plaintiff
agreed. Unfortunately, the work was done badly, and the brakes failed, with the result that the
plaintiff was injured. The defendants were clearly entitled to perform vicariously, as the plaintiff
had agreed to their doing so, but they were still liable for the sub-contractor’s defective
workmanship.