Unless the non-performance alleged to constitute the breach of the contract goes to the whole root and consideration of it the covenant broken is not to be considered as a condition precedent but as a distinct covenant for breach of which the party injured may be compensated in damages. Lord Mansfield said: ‘The distinction is very clear. Where the mutual covenants go to the whole of the consideration on both sides they are mutual conditions the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, then the defendant has a remedy for his covenant and shall not plead it as a condition precedent.’
Judges:
Lord Mansfield
Citations:
(1777) 1 Hy Bl 273
Jurisdiction:
England and Wales
Cited by:
Applied – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Applied – Ritchie v Atkinson 1808
. .
Cited – Davidson v Gwynne 1810
The court considered a claim for a breach of a charterparty.
Held: The sailing with the first convoy was not a condition precedent, the object of the contract was the performance of the voyage and that had been performed. It was useless to go . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 30 November 2022; Ref: scu.266189
