#6525 - Performance Of The Contract - Contract

Other common terms: Definitions Terms Entire Contract Terms Defines key terms within the contract "this document constitutes the entire agreement of the parties and supersedes all prior communications." Signifies final and complete agreements Best Endeavors Term "the agent will use his best endeavours to promote and extend the sale of the product in the state" Good Faith Terms Force Majeure Term "Neither party shall be liable in damages or have the right to terminate the agreement for any delay or default in performance..." Frees both parties from liability and obligations should unexpected circumstances arise Restraint of Trade Term "for a period of one year after the termination of this engagement, the salesman will not operate within one mile of a main office..." Limits where a party can trade Agreed (liquidated) Damages Term Dispute Resolution Term Jurisdiction Term Proper Law of the Contract PAGE 102 PERFORMANCE OF THE CONTRACT Express terms - written or said at the time of the contracts formation Implied terms - the judges "invent" because there is nothing said or written that covers them Discharging a contract: * By performance * By frustration * By agreement between parties * By breach * By operation of law Discharge by Performance: * A party must perform his/her obligations o At the time required by the contract and; o To the standard required by the contract * A party must offer (tender) performance o At the required time o At the required place o That conforms to the requirements of the K o Unconditionally o Cash SS? Or other recognised tender * Time for performance may be express or implied * Express: o Date o Time period o Event * Implied: o Within a reasonable time SS? Perri v Coolangatta Investments Limited (1982) 149 CLR 537 * Time can be essential or non--essential * Essential: o If the party doesn't perform on time, this is a breach of contract o Other party may terminate the contract o Party in breach may have to pay compensation * Non--Essential: o Other party cannot terminate contract but may still be able to apply for damages -- "time is of the essence" PAGE 103