No Right to Perform a Contract?

Abstract

This thesis offers an alternative outlook on the decision of a contractual party to reject the benefit of the contract when he is no longer interested in the other party’s performance. It is an attempt to justify such course of action by challenging the proposition that one is always entitled to perform one’s own contractual promises. This shall be done in the context of the controversial decision of the House of Lords in White & Carter (Councils) v McGregor [1962] AC 413, a case where the insistent performer happened to be able to complete his part of the contract without the need for his customer's cooperation and even against his expressed will. In a large number of cases the provider of a service will have no other interest in actually performing his part of the contract beyond that of securing his right to the full contract price. This thesis argues that whenever that is the case the courts should acknowledge both the service recipient's right to renounce the benefit of the contract and his power to prevent the unwanted supply of services, whether by words or conduct. The service provider who has been discharged from his duty to perform will be adequately protected so long as his right to the full contract price is not at stake. He has no need for a 'right to perform' in its proper sense. However, he should not end up better off than he would have been had he actually performed his part of the contract. Therefore, the abdicating party should be allowed to deduct from the contract price by way of set-off whichever sums the former has saved or otherwise made as a consequence of his early release.