Performance of a contract refers to the fulfillment of the obligations and duties outlined in the contract by the parties involved. When both parties perform their respective duties as per the terms and conditions of the contract, the contract is considered executed, and the obligations are discharged. Here’s a closer look at the concept of performance of a contract:

1. Types of Performance:
   • Performance can take various forms depending on the nature of the contract and the obligations involved. It can include:
     • Payment of money: If the contract involves a monetary transaction, one party may be required to pay a sum of money to the other party.
     • Delivery of goods: In contracts for the sale of goods, one party may be required to deliver the goods to the other party as per the agreed-upon terms.
     • Rendering of services: If the contract involves services, one party may be required to perform specific tasks or provide services to the other party.
     • Performance of duties: In contracts such as employment agreements or lease agreements, parties may have various duties and responsibilities to fulfill.

1. Complete vs. Partial Performance:
   • Complete performance occurs when all obligations under the contract are fulfilled entirely and as specified.
   • Partial performance occurs when only some of the obligations under the contract are fulfilled. In such cases, the performing party may be entitled to partial payment or damages for the partial performance.
2. Excuses for Non-Performance:
   • Certain circumstances may excuse a party from performing their obligations under the contract. These include:
     • Impossibility: If performance becomes impossible due to unforeseen circumstances beyond the control of the parties.
     • Impracticability: If performance becomes excessively difficult or costly due to unforeseen events.
     • Frustration of purpose: If the purpose of the contract is frustrated by unforeseen events, making performance pointless or impossible.

Performance : Time and Place

Performance of a contract often involves specific considerations regarding the time and place of fulfillment. Here’s an overview of how time and place affect performance:

1. Time of Performance:
   • Contracts may specify a deadline or a specific timeframe within which obligations must be fulfilled. Time is often of the essence in contract law, meaning that performance must occur within the agreed-upon timeframe.
   • If the contract does not specify a time for performance, performance is typically required within a reasonable time. What constitutes a reasonable time depends on the nature of the contract, industry standards, and the circumstances of the case.
   • Parties must be careful to adhere to any deadlines or timeframes specified in the contract to avoid being in breach of contract.
2. Place of Performance:
   • Contracts may also specify the location or place where performance is to occur. This could be a specific address, jurisdiction, or geographical area.
   • If the contract does not specify a place of performance, the default rule is that performance must occur at the place where the offer was made or where the party receiving the offer resides.
   • In some cases, the place of performance may be determined by industry customs or practices, or it may be implied from the nature of the contract.
   • Parties should ensure that they are aware of and able to comply with any requirements regarding the place of performance to avoid potential disputes.
3. Effect of Time and Place on Contractual Obligations:
   • Adhering to the specified time and place of performance is crucial for ensuring that contractual obligations are met effectively and efficiently.
   • Failure to perform within the agreed-upon timeframe or at the designated location may constitute a breach of contract, entitling the non-breaching party to remedies such as damages or cancellation of the contract.
   • Parties should communicate clearly about the time and place of performance and make arrangements accordingly to fulfill their obligations under the contract.

Agreement

An agreement is a promise or arrangement between two or more parties to do, or not do, something. It’s usually informal and sometimes unwritten (but not always). Some examples of agreements include a letter of intent, or a confidentiality agreement that precedes a commercial discussion.

Agreements like these are based on trust, and aren’t legally enforceable in court or with arbitration – so if one party doesn’t do what they’ve said they will (for example if the builder or volunteer don’t turn up), the other party likely can’t seek a remedy or enforcement through the courts.

1. Essential Elements of an Agreement:
   • Offer: An offer is a proposal made by one party to another, expressing a willingness to enter into a contract on specific terms. The offer must be communicated to the offeree and must be sufficiently definite and certain.
   • Acceptance: Acceptance occurs when the offeree agrees to the terms of the offer, indicating their intention to be bound by the contract. Acceptance must be unequivocal and communicated to the offeror in the manner prescribed by the offer.
   • Intention to Create Legal Relations: Parties must intend their agreement to have legal consequences and create legally binding obligations. Social or domestic agreements may lack this intention, while commercial agreements are presumed to have it.
   • Consideration: Consideration refers to something of value exchanged between the parties as part of the agreement. It can be in the form of a promise, act, forbearance, or monetary payment. Consideration is necessary to support the contract and make it legally enforceable.
2. Types of Agreements:
   • Express Agreement: An express agreement is formed through explicit statements or written terms agreed upon by the parties. The terms of the agreement are clearly articulated and understood by all parties involved.
   • Implied Agreement: An implied agreement is formed through the conduct or actions of the parties, rather than through explicit statements or written terms. The existence of an implied agreement is inferred from the circumstances surrounding the parties’ dealings.
   • Oral Agreement: An oral agreement is made verbally between the parties without a written document. While oral agreements are generally valid and enforceable, they may be more difficult to prove in court compared to written agreements.
   • Written Agreement: A written agreement is documented in writing and signed by the parties. A written agreement provides clear evidence of the terms agreed upon and helps prevent disputes regarding the agreement’s terms.
3. Legal Requirements and Formalities:
   • An agreement may be subject to certain legal requirements and formalities depending on the nature of the contract and the jurisdiction. For example, certain types of contracts, such as contracts for the sale of land or contracts involving the sale of goods over a certain value, may need to be in writing to be enforceable.
   • Additionally, some agreements may require formalities such as witnessing, notarization, or registration to be valid and enforceable.
4. Revocation and Termination:
   • Until acceptance of an offer is communicated, the offeror may generally revoke or withdraw the offer at any time before acceptance is made.
   • Once an offer is accepted and becomes a binding agreement, it can only be terminated or discharged through legal means such as performance, agreement, frustration, or breach.

Difference between agreement and contract

1. Definition:
   • Agreement: An agreement is a mutual understanding or meeting of the minds between two or more parties regarding the terms and conditions of a proposed arrangement. It may or may not have legal consequences, depending on various factors such as intention, consideration, and formality.
   • Contract: A contract is a legally binding agreement between two or more parties that creates enforceable rights and obligations. It involves an offer made by one party to another, followed by acceptance of that offer, consideration, and an intention to create legal relations. A contract must meet all legal requirements to be enforceable.
2. Enforceability:
   • Agreement: An agreement may or may not be legally enforceable, depending on various factors such as the presence of consideration, intention to create legal relations, and compliance with legal formalities.
   • Contract: A contract is a legally enforceable agreement that creates binding obligations on the parties involved. If one party fails to fulfill its obligations under the contract, the other party may seek legal remedies for breach of contract.
3. Legal Requirements:
   • Agreement: An agreement may be informal and may not require strict adherence to legal formalities. While some agreements may be oral or implied from the conduct of the parties, others may need to be in writing or comply with specific legal requirements to be enforceable.
   • Contract: A contract must meet certain legal requirements to be valid and enforceable, including:
     • Offer and acceptance: There must be a clear offer made by one party and acceptance of that offer by the other party.
     • Consideration: There must be something of value exchanged between the parties as part of the agreement.
     • Intention to create legal relations: The parties must intend for their agreement to have legal consequences and create binding obligations.
     • Capacity: The parties must have the legal capacity to enter into a contract.
     • Legality: The contract must have a lawful object and consideration, and it must not violate public policy.
4. Binding Nature:
   • Agreement: An agreement may or may not be binding on the parties involved, depending on the circumstances and the parties’ intentions.
   • Contract: A contract is legally binding on the parties involved, and failure to comply with its terms may result in legal consequences.

Impossibility of Performance and Frustration

Impossibility of performance and frustration are legal concepts that can discharge parties from their obligations under a contract when unforeseen circumstances arise that make performance impossible or impracticable. Here’s an explanation of each:

1. Impossibility of Performance:
   • Impossibility of performance occurs when it becomes objectively impossible for a party to fulfill its obligations under a contract. This impossibility must arise from circumstances beyond the control of the parties and not due to the fault of either party.
   • Impossibility of performance can be categorized into two types:
     • Physical impossibility: Occurs when the subject matter of the contract is destroyed or becomes unavailable, making performance impossible. For example, if a specific item that is the subject of the contract is destroyed before delivery.
     • Legal impossibility: Occurs when performance is prevented by operation of law or government action. For example, if a new law is enacted that prohibits the fulfillment of contractual obligations.
   • When impossibility of performance occurs, the affected party is typically discharged from its obligations under the contract, and the contract may be considered frustrated.
2. Frustration of Contract:
   • Frustration of contract occurs when unforeseen events arise after the formation of the contract that render performance impossible, illegal, or radically different from what was contemplated by the parties at the time of contracting.
   • Frustration may arise from various events, including:
     • Destruction of the subject matter of the contract.
     • Death or incapacity of a party essential for performance.
     • Government intervention or legislative changes that make performance illegal.
     • War, natural disasters, or other unforeseeable events that make performance impracticable.
   • When frustration occurs, the contract may be discharged, and both parties are relieved from further performance. The parties are typically returned to their pre-contractual positions, and any benefits conferred under the contract may need to be restored.
   • Frustration is generally considered an equitable doctrine, and the court will assess each case on its merits to determine whether frustration has occurred.

Breach : Anticipatory and Present

Breach of contract occurs when one party fails to fulfill its obligations under the terms of a contract without a valid legal excuse. Breaches can be categorized into two main types: anticipatory breach and actual or present breach.

1. Anticipatory Breach:
   • Anticipatory breach, also known as anticipatory repudiation, occurs when one party to the contract indicates, either by words or actions, that they do not intend to fulfill their obligations under the contract before the time for performance arrives.
   • Anticipatory breach typically arises when one party explicitly states that they will not perform their obligations under the contract, or when their actions demonstrate an inability or unwillingness to perform.
   • When an anticipatory breach occurs, the non-breaching party has several options:
     • Treat the breach as immediate and bring an action for damages without waiting for the actual time for performance.
     • Wait until the time for performance arrives to see if the breaching party performs. If not, then bring an action for damages.
     • Elect to terminate the contract immediately and seek damages for breach.
2. Present or Actual Breach:
   • Present or actual breach occurs when one party fails to fulfill its obligations under the contract at the time specified for performance or when performance is due.
   • Unlike anticipatory breach, present breach occurs at the time performance is supposed to happen, and there is no advance indication of the party’s intent not to perform.
   • When a present breach occurs, the non-breaching party can:
     • Sue for damages resulting from the breach.
     • Seek specific performance, where the breaching party is compelled to perform its obligations under the contract.
     • Terminate the contract and seek restitution or damages for any losses suffered as a result of the breach.