Mr Bettini agreed to sing for Mr Gye in concerts and operas in London between March and July 1875. The contract said he was to be in London ‘without fall’ at least six days before the 30th March for rehearsals. Because of illness, he did not arrive until the 28th.
Held: The term was not in this case a condition precedent: the clause was a warranty only and a breach would not amount to a repudiation of the contract but would only give rise to an action for compensation in damages. Nevertheless, parties to a contract are free to say that a breach of a particular term will be fundamental.
Blackburn J said: ‘Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one.’
To discovere wether there had been a repudiation, the court had to ask whether the breach in question was of a term: ‘going to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different from what the defendant has stipulated for.’
Blackburn J
(1876 ) 1 QBD 183
England and Wales
Cited by:
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Lombard North Central v Butterworth CA 31-Jul-1986
The defendant entered into a hire-purchase contract for a computer, time being stipulated to be ‘of the essence’ in relation to the payment obligations. He defendant defaulted, and the plaintiff took possession of the goods, and and sought payment . .
Lists of cited by and citing cases may be incomplete.
Contract
Leading Case
Updated: 10 December 2021; Ref: scu.251066
