Access to Justice

Therefore we can deduce that independent contractor has rights in terms of his termination of the contract applying the exceptions to the rule of precise performance, therefore the party may use the Substancial performance where a party gives up performing a particular contract when only part of it is done, the party is therefore not entitled to recover any sum for the work completed for example if a builder substantially completes his contract and the workmanship falls below the contractual specifications in minor details, he can recover the contractual price, but the defendant can claim a deduction for the cost of rectifying the defects. We can therefore conclude that what constitutes substantial performance depends upon the nature of the contract and all the relevant circumstances.

Partial performance is also found to be one of the way of terminating a contract applied by the contractor, where one of the parties to the contract has voluntarily accepted the benefit of the partial performance, the court may infer an implied promise to pay for the work done or goods already supplied. The termination of a contract may also be practiced by the prevention of performance by the defendant where a party to a contract, if prevented from completing the whole of the contract by the fault of the other party, is entitled to recover damages for breach of contract or alternatively choose to recover reasonable payment for the work done.

Tender of performance is also one of the ways of termination of a contract where one party is willing and ready to perform his obligation in accordance with the terms of the contract but the other party refuses to accept the performance, in a situation like this, the contract is discharged because of the wrongful refusal to accept the performance by the other party. By waiver this is where when a contract is still Executory, a mutual agreement between the parties can release each other from their respective obligations and rights.

This is known as waiver, and can take any form the original contract was under seal. But in a situation where one party has performed his duties and agrees to release the other party from his obligation, he is not bound by his promise, and can still demand the performance of the contract unless his promise of waiver is under seal. The other way by novation this is where an existing contract may be discharged when a new contract is substituted in its place either between the same arties or between different parties.

The consideration here is the discharge of the old contract. Accord and satisfaction is also a way in which a party to a contract makes breach of his obligation, and the other party promises to accept less than what is due under an existing contract, he is not bound by such a promise. However, if a lesser is actually paid on an earlier date at the request of the payee, or something different in kind has been accepted, there is a good discharge, in such a case the old contract is discharged by accord and satisfaction.

Reference

Emanuel, S (2004): Fundamental of Business Law, 4th Edition, New York, Educational Publisher Gifford. K (1980): Legal Profession Law & Practice in Victoria Law Book Co, Sydney Hudson A. (2003), Equity & Trusts, third edition, Cavendish London Hemsworth, M. (1988): The new pre-action protocol for personal injury claims-2, NLJ Jertz A. and Miller L. R, (2004): Fundamentals of Business Law, 3rd Edition, New York, Macmillan Publisher Lord, W. and Zuckerman, A (1996): Access to Justice: Plus ca change, 59 MLR 773