"All of our reasoning ends in surrender to feeling."

Blaise Pascal

In today's Grammatigalhas: "The proverbial fat lady didn't sing, so it's not over yet". Do such rule apply in law? Read all about discharge and performance of contracts.

• Top News

Top court rejects Guantanamo test

The US Supreme Court has said it will not decide whether detainees held at Guantanamo have the right to challenge their detention in US federal courts. The decision means the court will not rule on the constitutionality of an anti-terror law pushed through Congress by Bush last year. The provision in question states that Guantanamo Bay inmates cannot challenge their detention in US civil courts. Many of the 385 detainees at the camp have been held for five years or more. None has yet been able to challenge their detention in a US civil court. The provision stripping detainees of their right to mount a legal challenge to their confinement was upheld by a federal appeals court in Washington in February. The court's majority opinion was that "the will of Congress" should prevail and that habeas corpus did not apply to foreign nationals being held at Guantanamo Bay because it is not US soil.

US attacks unfair trade practices

The US has said more than 60 of its main trading partners engage in unfair practices and that copyright theft in China remains its main concern. In a report to Congress, the US Trade Representative said US companies were facing "significant" barriers to trade and investment around the world. It said it would refer China to the World Trade Organization unless it did more to protect intellectual property. It also pledged to continue its fight to curb subsidies to plane maker Airbus.

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• MiMIC Journal

China bank launches $3bn listing

China's CITIC Bank has launched a dual $3bn initial public offering on the Shanghai and Hong Kong stock exchanges. The move by China's seventh biggest bank follows similar lucrative share listings by Chinese banking groups. Global investors are increasing keen to gain access to China's soaring economy through share listings.

Chinese exports to Brazil reach record in March

Chinese exports to Brazil reached US$942 million in March, the highest figure ever reached in a single month of trade between the two countries, according to the Brazilian government. Last month, Chinese exports to Brazil rose 53.4 percent against March 2006. With this they overtook the previous record from November 2006 (US$854.2 million). This rise allowed China to once again overtake Argentina as the second-largest supplier of goods to Brazil, behind the United States.

• Grammatigalhas

Legal Meaning Is Not Everyday Meaning

Executory / terminated

While a contract is still wholly or partly unperformed it is termed executory; contracts may terminate, however, in ways other than by being fully executed. If the object of the contract becomes impossible or unlawful, if the parties make a novation (a new superseding agreement), or if the death of one party prevents that party from rendering personal services he or she had agreed to perform, the contract is terminated.

The injured party may also treat the contract as a nullity if the other party refuses to perform.

Everyday "Legal" Jargon

Discharge and performance of contracts

Discharge is the termination of a party's obligations arising under a contract. A discharge is the act or instrument by which a contract or agreement is ended. A mortgage is discharged if it has been carried out to the full extent originally contemplated or terminated prior to total execution.

Discharge occurs either when:

• both parties have fully performed their contractual obligations; or

• events, conduct of the parties, or operation of law release the parties from their obligations to perform.

A party's obligations to perform under a contract may be either absolute or conditioned on the occurrence or nonoccurrence of some event.

Conditional performance

A condition is an event which must occur before a party's performance is due; when considering discharge of contracts, a contractual qualification, provision, or clause which creates, suspends, or terminates the obligations of one or both parties to the contract, depending on the occurrence or nonoccurrence of some event.

Condition precedent to duty: a condition that must be satisfied before a party's contractual obligation to perform becomes absolute (e.g., Bob promises to hire Terry as a driver as soon as Terry gets his license).

Condition subsequent to duty: a condition the occurrence or nonoccurrence of which will terminate a party’s absolute obligation to perform (e.g., Mary agrees to let Sue stay in Mary’s spare room for as long as Sue remains unmarried).

Concurrent conditions: Mutually dependent conditions that must occur or be performed at the same time in order to give rise to any absolute obligation to perform (e.g., Nikki offers to pay Tina $100 in exchange for Tina’s class ring).

Courts recognize and enforce both express conditions, in which the parties have agreed - either explicitly or implicitly - and implied conditions, in which a court uses the process of implication to determine whether to supply a term that makes an event a condition and what term to supply. The distinction between express and implied conditions is of practical importance because the rule of strict compliance is limited to express conditions.

Contractual performance

Discharge by performance: A contract terminates when both parties perform or tender performance of the acts they have promised.

Tender: An unconditional offer to perform an obligation by a person who is ready, willing, and able to do so. A party 'tenders' performance if he either performs or else offers to perform with a present ability to do so.

Complete vs. substantial performance: When a party fails to completely perform her contractual duties, the question arises whether the performance affords the other party substantially the same benefits as those promised. If so, then the first party is said to have substantially performed.

If a party substantially performs, the contract remains in force and the other party must still perform its duties – although it may be entitled to recover damages for the substantially performing party’s failure to perform fully.

If a party fails to substantially perform, the other party's remaining contractual obligations, if any, are discharged.

Time for performance: If no time is stated in the contract, performance is due within a reasonable time.

Satisfaction of contracts

The discharge of the existing duty does not occur until the performance or substitute performance is completed.

Some contracts require one party to perform to the satisfaction of the other. When a contract so provides, courts will apply one of two tests depending on the circumstances:

Subjective satisfaction: When the purpose of the performance is to satisfy personal taste, aesthetics, and the like (e.g., painting a portrait of a customer’s beloved), the court will ask whether the party to be satisfied was, in good faith, satisfied or dissatisfied with the performance.

Objective satisfaction: When the purpose of the performance is to serve some function (e.g., roofing a warehouse to keep out the elements), the court will ask whether a reasonable person would be satisfied or dissatisfied with the performance.

Satisfaction of a third party: Some contracts require that the performance satisfy some non-party (e.g., an art critic, or an independent lab). Courts tend toward the objective satisfaction standard in these cases, but some have applied the subjective satisfaction test when the third party’s expertise goes to the same factors that would lead a court to apply the subjective test if a party’s satisfaction was at stake.

Breach and repudiation

Material Breach: A party's failure, without legal excuse, to substantially perform her contractual obligations. The other party is then entitled to cancel the contract as well as to recover damages. Only material breaches, not lesser ones, allow the non-breaching party to cancel. The more the breach defeats the entire purpose of the contract and the expectations of the non-breaching party, the more likely it is to be considered ‘material’.

If a party's breach is non-material, the non-breaching party's duty to perform may be suspended until the breach is remedied, or "cured". However, a non-material breach will not excuse performance by the non-breaching party. Only a material breach will excuse the non-breaching party from its contractual obligations.

If time is not "of the essence", failure to perform by the time specified in the contract is not a material breach.

Anticipatory repudiation: An action by a party to a contract that indicates that she will not perform a contractual obligation due to be performed in the future.

Such a repudiation will excuse the non-repudiating party from performing under the contract.

However, until the non-repudiating party treats the repudiation as a material breach, the repudiating party can retract her repudiation and restore the parties' contractual rights and obligations.

Discharge by agreement

Rescission: The process by which the parties cancel a contract and return one another to their pre-contract status. As long as a contract is executory on both sides (i.e., neither party has fully performed), the parties may agree to rescind or cancel the whole contract. Such an agreement is called a mutual rescission. Each party gives up his rights under the contract in consideration fro freedom from completing performance.

Novation: Substituting a new contract, replacing on or more of the original parties for the old contract, thereby terminating the original parties' rights and duties under the old contract. A party to a contract who delegates his duties under that contract to a third person remains liable, If, however, the obligee under the original contract (i.e., the person to whom the duty is owed) agrees to relieve the obligor of all liability after delegation, a novation is said to have occurred.

Novation requires:

1. a valid, prior agreement, for which

2. consent: all parties agree to substitute a new contract;

3. discharge of the prior obligation; and

4. a valid, new agreement.

Substituted agreement: Substituting, by agreement, a new contract for the old contract, thereby terminating the parties' rights and duties under the old contract. Notice that the parties to a substitute agreement are the same as the parties to the original contract.

Accord: An agreement in which one party to a contract promises to render a substitute performance, and the other party promises to accept that substitute performance in discharge of the existing duty. The discharge of the existing duty does not occur until the substitute performance is competed. The completion of the substitute performance is called a "satisfaction" of the accord. Therefore, if the substitute performance does not occur, the party who agreed to receive it has a choice of suing either for breach of the original contract or for breach of the accord.

Discharge by operation of law

Material Alteration: If the material terms of a contract are altered, an innocent party (i.e., one who neither altered nor consented to the alteration of the contract) may be discharged from their contractual obligations.

Statutes of Limitations: The running of limitations (e.g., in the case of claims under Article 2 of the Uniform Commercial Code, four years from the date of the breach, regardless of the injured party’s knowledge of the breach) does not technically discharge the parties, but it prevents the wronged party from seeking judicial remedies.

Bankruptcy: A discharge in bankruptcy, afforded to a debtor after its liquidation or reorganization plan is approved, bars subsequent enforcement against the debtor of any contracts that pre-date the discharge.

Unlike promises to pay or partial payment of a debt barred by limitations, promises to pay or partial payment of a debt following discharge does not revive the debt.

Impossibility, impracticability, and frustration of purpose

Unexpected events may occur which affect the feasibility or possibility of a party's performance and cause the parties to be excused from continued performance under the contract.

A party may be excused when performance becomes either impossible or impracticable through no fault of either party. The following will generally excuse performance as objectively impossible or impracticable:

• death, illness or incapacitation prior to performance of a personal services contract;

• destruction or unavailability of the subject matter of the contract prior to performance;

• supervening illegality: a subsequent change in the applicable law that makes performance illegal;

• changing market conditions make performance commercially impracticable;

• frustration of purpose – supervening circumstances making it impossible for both parties to achieve the purpose of the contract.

When a contract has been discharged because of one of the above reasons, most courts allow parties to recover in quasi-contract. The measure of damages will be either restitution damages (the value of the benefit conferred by the plaintiff on the defendant) or reliance damages (expenditures the plaintiff made in partly performing or preparing to perform).

Temporary vs. Permanent: A change in circumstances that makes performance temporarily impossible or impracticable will act to suspend, but not excuse, performance.

As If Your Life Depended On It... or How to get to Carnegie Hall? - Practice, practice

Pass the buck

Shift responsibility to someone else.

A term from poker originating in the USA. A knife with a buckhorn handle, abbreviated to buck, was put in the jackpot; some other handy object could be used but it was still called 'the buck'. It was temporarily held by the winner of the jackpot, but when the deal reached him a new jackpot had to be made and the responsibility of holding the buck was passed on. One version of poker was called pass the buck. In other versions the buck is placed on the table to indicate whom the dealer is or whose turn it is to put an agreed sum into the pool. In either case, the buck is then passed on clockwise.

The earliest recorded use of the phrase is by Mark Twain, in 1872, in the first decade after the end of the Civil War, when poker or stud poker - the stake was probably a stud horse - were played in bars by lumberjacks, miners and hunters, those being the days before it became known as a 'gentleman's game.

Harry S. Truman, President of the USA from 1945-53 and a keen poker-player, had a sign on his desk 'The buck stops here'.

"Passing the buck" had by this time come to signify an evasion or denial of responsibility. Originally, it simply meant a passing on of accountability by rotation.

PIN number / PIN

Those who object to "PIN number" on the grounds that the N in "PIN" stands for "number" in the phrase "personal identification number" are quite right, but it may be difficult to get people to say anything else. "PIN" was invented to meet the objection that a "password" consisting of nothing but numbers is not a word. Pronouncing each letter of the acronym as "P-I-N" blunts its efficiency. Saying just "PIN" reminds us of another common English word, though few people are likely to think when they are told to "enter PIN" that they should shove a steel pin into the terminal they are operating. In writing, anyway, PIN is unambiguous and should be used without the redundant "number".

The same goes for "VIN number"; "VIN" stands for "Vehicle Identification Number." And "UPC code" is redundant because "UPC" stands for "Universal Product Code".

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• Historia Verdadera

• Brief News

Bush warns over Iraq funds delay

Bush has warned that US troops will suffer if a dispute with Congress over a war funding bill is not resolved soon. Speaking at the White House, Bush said Congress was failing in its "basic responsibility" to give troops the equipment and training they need. He renewed his threat to veto any bill that ties war funding with a timetable for the withdrawal of US troops. He also noted that 57 days had passed since he requested the war funding - and reproached members of Congress for having "left on spring break without finishing their work".

Peru to bomb Amazon cocaine labs

The Peruvian President, Alan Garcia, has ordered the use of warplanes to destroy clandestine airstrips and drug laboratories in the Amazon jungle. Garcia said drug barons must also be pursued and warned that Peru could face an insurgency funded by illicit drugs.

Deep in the Colombian jungle, coca still thrives

For seven years, the United States has sprayed a deadly defoliant on Colombia's coca fields. Some credit the program with a sharp drop in violence in that nation. But in remote, lawless regions, cocaine production — and the violence it entails — remains strong.

Boeing tops 500 Dreamliner orders

US aerospace giant Boeing says it has secured more than 500 orders for its 787 Dreamliner passenger jet.

'Talking' CCTV scheme expanding

"Talking" CCTV cameras that tell off people dropping litter or committing anti-social behaviour are to be installed in 20 areas across England. They are already used in Middlesbrough where anyone seen misbehaving can be told via a loudspeaker, controlled by control centre staff, to stop. There are around 4.2million CCTV cameras in Britain. Critics say the cameras are absurd and another example of excessive government intrusion into everyday life.

Immigration Plan Puts Price on Visa

The White House is floating a proposal to change immigration laws to stop adult siblings and adult children from getting family unification visas to join a relative in the United States. The new plan would require immigrants with temporary work visas who want to apply to stay permanently to return home and pay $10,000 to submit the application.

Argentina's First Lady May Seek Presidency

In a crucial election year for Argentina, President Kirchner's popularity ratings are sky-high. But the president could bow out of the running, making room for his senator wife, Christina.

Apple faces EU antitrust probe into iTunes

The European Commission [official website] is investigating Apple's iTunes [JURIST news archive] to determine if sales restrictions based on the buyer's country of residence violate EU antitrust laws, according to a commission statement confirming the probe [press release] Tuesday. Music buyers in Europe are currently only able to download songs or albums from the iTunes store in their own country, which the commission says restricts buyers in terms of what music is available and the cost of each purchase. Depending on where in Europe the buyer lives, music prices can vary by as much as $0.24 for a single song. A spokesman for Apple [corporate website] said Monday that the company would like to make the costs and availability to Europeans uniform across the 27-nation EU, but music labels and publishers have limited Apple's rights in Europe. Apple could face significant fines if found in violation of EU antitrust [JURIST news archive] laws.

The Nerve! Students tell big firms they want a life

They may not have law-firm jobs yet, but a group of students at top law schools are already looking to change the way big firms operate. The students asked 100 of the country's biggest law firms to sign on to principles espousing a saner work environment for lawyers, such as adopting balanced-hours policies "that work" and reducing partnerships' billable-hour expectations. The principles are "an aspirational state we want the law firms to commit to moving towards," explains Craig Holt Segall, who is leading the charge along with fellow Stanford Law School student Andrew Canter. They say roughly 125 students from some of the nation's top schools emailed the request this week to hiring partners and recruiting coordinators. What's in it for the firms? Possibly avoiding negative chatter among potential hires. The students maintain that before the fall interviewing season they will spread the word on campuses about which firms haven't signed on. As for pay demands, the group isn't exactly your typical labor movement. "We recognize that changes in work structures come with an economic cost, and we are willing to be paid less in exchange for a better working life," the group says. Are the firms buying in? Yesterday, several declined to comment. Perhaps they were waiting to see what their competitors had to say.

• Daily Press Review

Africa

Is this goodbye?
East African Standard, Liberal daily of Nairobi, Kenya

'She'll never walk alone '
Ghanaian Chronicle, Independent, published in Accra, Ghana

US agents visit Ethiopian secret jails
Mail and Guardian, Liberal daily of Johannesburg, South Africa

Americas

Warning issued
Barbados Advocate, Independent daily of St Michael, Barbados

War remembered, sans Kirchner
Buenos Aires Herald, Liberal daily of Buenos Aires, Argentina

Woman killed in shooting at CNN complex
The Globe And Mail, Centrist daily of Toronto, Canada

MP demands pay increase
Jamaica Gleaner, Centrist daily of Kingston, Jamaica

Asia Pacific

Top court rules Nova policy illegal / School must fully refund cancelers
Daily Yomiuri, Conservative daily of Tokyo, Japan

China confirms Wen to deliver speech at Japan's Diet
People's Daily Online, Pro-government daily of Beijing, China

'Cards led to filmed gang rape'
The Sydney Morning Herald, Centrist daily of Sydney, Australia

65 Businessmen Arrested From Nepalgunj Protest
The Himalayan Times, Independent daily of Kathmandu, Nepal

Raja Nazrin: M'sians must defend, promote integrity of Constitution
The Sun, Independent daily of Kuala Lumpur, Malaysia

Europe

EU Urges Moderation in Ukraine Political Standoff
Deutsche Welle, International broadcaster of Cologne, Germany

Key economic policy principles to remain unchanged after 2008 elections
Interfax, Government-owned news agency, Moscow, Russia

Lightning work stoppages could cripple hospitals
Irish Examiner, Centrist daily of Cork, Ireland

Yushchenko Issues a Warning to Yanukovych
The Moscow Times, Independent, English-language daily of Moscow, Russia

357.2 mph French TGV shatters the world rail speed record in 30m dash
The Scotsman, Centrist daily of Edinburgh, Scotland

International investors eye media auction
Turkish Daily News, Independent daily of Istanbul, Turkey

Middle East

Purple fingers, black bands
Al-Ahram Weekly, Semi-official, English-language weekly of Cairo, Egypt

SR7bn Railroad Deal Signed
Arab News, Pro-government, English-language daily of Jidda, Saudi Arabia

March 14 MPs hand over petition calling for UN action on tribunal
The Daily Star, Independent, English-language daily of Beirut, Lebanon

Britain sees no fast solution to row with Iran
Gulf News, Independent daily of Dubai, United Arab Emirates

Egypt mulls bid to curb arms smuggling into Gaza
Ha'aretz, Liberal daily of Tel Aviv, Israel

Iranian artists will respond to film 300: Culture Minister
Islamic Republic News Agency, Government-owned news agency of Tehran, Iran

Palestinians 'offended' by Merkel's pro-Israel stance
The Jerusalem Post, Conservative daily of Jerusalem, Israel

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