(1) An obligor can properly delegate the performance of his duty to another unless the delegation is contrary to public policy or the terms of his promise.
(2) Unless otherwise agreed, a promise requires performance by a particular person only to the extent that the obligee has a substantial interest in having that person perform or control the acts promised.
(3) Unless the obligee agrees otherwise, neither delegation of performance nor a contract to assume the duty made with the obligor by the person delegated discharges any duty or liability of the delegating obligor.
Sent: 17 November 2022 18:24
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Jason W Neyers <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: RE: ODG: Vicarious Performance in Contract Law
Absent a duty requiring personal service in the contract I don’t really see what the problem with delegated performance would be. The promisor is bound to deliver the book, and if the book is not delivered then the promisor is liable for breach. But if the promisor does deliver the book to the promisee, even through an intermediary, then the book has been delivered.
Not to go full civilian here but the Civil Code of Québec has an article that expressly deals with this issue – art. 1555 – and I see no reason to think that the common law position should be much different.
From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: November 17, 2022 1:14 PM
To: Jason W Neyers <jneyers@uwo.ca>; obligations <obligations@uwo.ca>
Subject: Re: ODG: Vicarious Performance in Contract Law
Attention : courriel externe | external email
There certainly are some cases where subcontracting has deprived a claimant of the right to the price. A nice one is the solicitors' case of Pearless de Rougemont & Co v Pilbrow [1999] 3 All E.R. 355, where a law firm delegated a job in breach of contract to an unqualified employee: the court was clear that however well the latter actually did the job the firm hadn't rendered contractual performance and couldn't claim their fee. -Andrew
On 17/11/2022 17:14, Jason W Neyers wrote:
Dear Colleagues:
Suppose that A wants to ship something (a book) from Toronto to X in another location. A contracts with B Ltd. to do the shipping. The book arrives and X takes possession. It turns out that as a matter of fact B Ltd. did not do the shipping (or all of the shipping) but instead that other contractors did. Can A sue for breach? Can A refuse to pay the contract price if it is demanded by B Ltd? Why is the answer to these questions generally no? Is it just a question of contract interpretation or is there some legal recognition that B Ltd actually performed the contract through the “agency” of the other contractors, who performed on B Ltd’s behalf?
If anyone has any views on this or knows of any good discussions in caselaw, article or textbooks, I would be delighted to be pointed in the right direction.
Sincerely,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
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Institute for International Shipping and Trade Law |
Andrew Tettenborn Sefydliad y Gyfraith Llongau a Masnach Ryngwladol |
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