I think the key point here is that “obligations to repair fences not being the same as bets as to whether a fence will be repaired by
someone at some point in the future”. This is correct as a practical matter, and means that a contract to repair a fence will almost always limit delegation in some way. But once you accept the possibility of a promise to merely guarantee that a result occurs
– a suretyship agreement comes to mind – then you’ve already accepted unrestricted third-party performance in principle.
If A promises B that B’s fence will be repaired, and B promises to pay A $100 as consideration for that promise, then B owes A the $100 even if a third party, C, mistakenly completes
the repairs. Perhaps C can make out a claim against A to recover the cost of the repairs, but that’s another matter entirely.
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: November 18, 2022 12:20 PM
To: Stéphane Sérafin <Stephane.Serafin@uottawa.ca>; Jason W Neyers <jneyers@uwo.ca>; Andrew Dickinson <andrew.dickinson@stcatz.ox.ac.uk>
Cc: obligations <obligations@uwo.ca>
Subject: RE: Vicarious Performance in Contract Law
Attention : courriel externe | external email
So, is the claim that if A agrees with B Ltd that the latter will repair the former’s fence for $100, if a third party repairs the fence by mistake thinking it to be her own, that B
Ltd is entitled to be paid $100? Because A has “received what she was promised”?
If so, I don’t think that is right. B Ltd hasn’t performed, obligations to repair fences not being the same as bets as to whether a fence will be repaired by someone at some point in
the future. Sometimes contractual obligations take that form, but not usually, and not here.
That doesn’t involve arguing, as Steve attributes to me, that an obligation of “personal performance” is somehow implied. This isn’t a contract where the work has to be done by any particular
person at all (unlike my obligation to teach for the University of Oxford). Indeed, B Ltd, is a legal construct and can’t repair fences save through the agency of real world people.
Rather B Ltd’s obligation is to do something (“perform”) a doing that can be done through the agency of those authorised to act on the promisor (B Ltd’)s behalf. If the work is done
by B Ltd’s employees (or a sub-contractor acting on B Ltd’s behalf) B Ltd gets paid. But not if an unrelated stranger repairs the fence, thereby ending the ability of B Ltd to do the necessary work.
And if we don’t think they get paid if an unauthorised stranger does the work (and I don’t) and their obligation can no longer be performed (because there no longer is any broken fence
to repair) then I think their obligation to do the work is ended, and the price will never be earned. Frustration.
From: Stéphane Sérafin <Stephane.Serafin@uottawa.ca>
Sent: 18 November 2022 17:01
To: Jason W Neyers <jneyers@uwo.ca>; Andrew Dickinson <andrew.dickinson@stcatz.ox.ac.uk>
Cc: obligations <obligations@uwo.ca>
Subject: RE: Vicarious Performance in Contract Law
This seems right to me. It would be a very queer case of frustration in which the contract comes to an end not because of some external fact, but because the obligation was discharged (as a purely
factual matter) by someone else. The ultimate question is simply what the promisor owed the promisee. In most cases this will mean at least some constraints on delegation. But it principle it does not need to. If the promisee receives what was promised then
the promisor has fulfilled her obligation.
From: Jason W Neyers <jneyers@uwo.ca>
Sent: November 18, 2022 7:04 AM
To: andrew.dickinson <andrew.dickinson@stcatz.ox.ac.uk>
Cc: obligations <obligations@uwo.ca>
Subject: RE: Vicarious Performance in Contract Law
Attention : courriel externe | external email
On behalf of Steve Hedley:
I think we are all agreed that a term requiring personal performance may sometimes be implied into a contract. The
Pearless De Rougemont case which Andrew mentions is clearly of that type, the Court of Appeal giving explicit and cogent reasons why the term was implied-in-fact.
That leaves the issue of principle, whether
even in a case where no such term can be implied, nonetheless personal performance is required. Such a rule presumably requires that even if there is perfect performance, nothing is due, if the original contractor was somehow not sufficiently involved
in that performance. This is presumably a hard rule of law, since (ex hypothesi) it can’t be traced to the intention of the parties.
Rob seems to be arguing that there is such a rule, but that it is in practice always satisfied, because even the slightest involvement by the contractor can be regarded as the agent of the person who actually does the
work. But this stretches notions of ‘agency’ well past their usual limits. For me, it is a matter of Occam’s razor: a rule which is never mentioned and never applied is probably not a rule at all.
Steve Hedley
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Andrew Dickinson <andrew.dickinson@stcatz.ox.ac.uk>
Sent: November 18, 2022 4:16 AM
To: robert.stevens <robert.stevens@law.ox.ac.uk>; PStanley <PStanley@essexcourt.net>; Jason W Neyers <jneyers@uwo.ca>; Krish
<krishneel@gmail.com>; Stephane.Serafin <Stephane.Serafin@uottawa.ca>
Cc: a.m.tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations <obligations@uwo.ca>
Subject: Re: Vicarious Performance in Contract Law
What if the sub-contractor performs badly and cause damage? In that case, agency reasoning seems essential to explain the claimant's entitlement to recover its loss. Surely,
the conception of agency is flexible enough to allow for representation for a limited purpose.
This type of reasoning is important for non-delegable duties in the tort of negligence, as well, in my view. Like most contractual duties, the task but not the duty can
be delegated and the effect is to make the delegate the agent of the duty holder in the performance of the task.
Best wishes
Andrew
Professor Andrew Dickinson
Fellow and Tutor in Law
St Catherine's College
Manor Road
Oxford
OX1 3UJ
Tel. +44 (0)1865 281434 / Mobile +44 (0)7881 588871
andrew.dickinson@stcatz.ox.ac.uk
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: 17 November 2022 19:16
To: Paul Stanley KC <PStanley@essexcourt.net>; Jason W Neyers <jneyers@uwo.ca>; Krish <krishneel@gmail.com>; Stephane.Serafin <Stephane.Serafin@uottawa.ca>
Cc: a.m.tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: Vicarious Performance in Contract Law
I think it wrong not to regard them as agents. Their actions are attributed to the main contractor because they were authorised to act on behalf of the main contractor. We need a word for that, and agency is what we
have,
The reason we might not think of them as “agents” is because many agents are authorised to exercise legal powers on behalf of others. Clearly the sub-contractor can’t bind their employer to a contract or somesuch.
Similarly, banks are agents for receipt: they’re authorised to receive payments on our behalf. Their acceptance is attributed to the customer. But they’re not authorised to do other things, like enter into contracts
for us. So their agents for some purposes, but not others.
I think what misleads us is what the books on agency focus on.
From: Paul Stanley KC <PStanley@essexcourt.net>
Sent: 17 November 2022 19:07
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Jason W Neyers <jneyers@uwo.ca>; Krish <krishneel@gmail.com>; Stephane.Serafin
<Stephane.Serafin@uottawa.ca>
Cc: a.m.tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations <obligations@uwo.ca>
Subject: Re: Vicarious Performance in Contract Law
Sort of agree. But a subcontractor is not normally regarded as an agent (nor an employee) so unless maybe they are some sort of agent for some purpose but not usually called that, more is going on here.
Barrister regulated by the Bar Standards Board
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Thursday, November 17, 2022 7:04:12 PM
To: Jason W Neyers <jneyers@uwo.ca>; Krish <krishneel@gmail.com>; Stephane.Serafin <Stephane.Serafin@uottawa.ca>
Cc: a.m.tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: ODG: Vicarious Performance in Contract Law
I don’t think agency can be a complete red herring.
Contracts for the provision of goods and services aren’t (at least ordinarily) bets about whether someone or other will provide the goods or services in the future. Rather they’re agreements that one party will provide
those goods and services.
If I employ a builder to repair my bridge, I don’t necessarily expect him to do the work personally. If the builder is a corporation it will do so through its employees. Or it may be permissible to sub-contract the
work to somebody to do all or some of it on the builder’s behalf.
But if a stranger subsequently comes along and mistakenly repairs the bridge, thinking it was theirs, I don’t think the builder has performed and is thereby entitled to be paid. His obligation to repair the bridge may
have been discharged, but here through frustration (the work no longer needs to be done) rather than performance.
It is only if the work is done by someone authorised to do it on his behalf (or who purports to do it on his behalf whose actions are then ratified) that performance is thereby made.
Performance, as the word implies, requiring some doing either by the promisor or somebody on his behalf.
Rob
From: Jason W Neyers <jneyers@uwo.ca>
Sent: 17 November 2022 18:45
To: Krish <krishneel@gmail.com>; Stephane.Serafin <Stephane.Serafin@uottawa.ca>
Cc: a.m.tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations <obligations@uwo.ca>
Subject: RE: ODG: Vicarious Performance in Contract Law
I post on behalf of Steve Hedley:
In principle it must be a matter of interpretation.
For most commercial goods and services, the natural interpretation will surely be that A is paying for the goods/services to be provided, and
who provides them is beside the point.
But there would be some cases where the personality matters; for example, it would surely be implicit in most (?all) employment contracts that
the employee should do the work, not merely that the work should be done.
There are of course borderline cases, e.g. Boulton v Jones (1857). ‘Agency’ seems to me to be a red herring in this context.
Steve Hedley
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Krish <krishneel@gmail.com>
Sent: November 17, 2022 1:29 PM
To: Stephane.Serafin <Stephane.Serafin@uottawa.ca>
Cc: a.m.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
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I agree with Stéphane, and think it comes down to what exactly is promised. Is it the result that has been promised, or is it the act/attempt, or both? If it is only the result that is promised, I can't see
any problem in principle with subcontracting the work out to someone else.
Krish
On Thu, 17 Nov 2022 at 10:24, Stéphane Sérafin <Stephane.Serafin@uottawa.ca> wrote:
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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Andrew Tettenborn
Professor of Commercial Law, Swansea UniversityInstitute for International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
SWANSEA SA2 8PP
Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol AbertaweSefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
ABERTAWE SA2 8PP
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
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