The Effect of Breach, Essay Example

Universal Travel Services breached the contract with Shaw by going to Mount Assiniboine instead of Castle Mountain, as outlined in the contract.  The question is whether or not that breach was major enough for Shaw to treat the contract as discharged.  In this case, the doctrine of substantial performance prohibits Shaw from treating the contract as discharged.

The doctrine of substantial performance states that a promisor is entitled to enforce a contract when it has substantially performed, even though its performance does not comply in some minor way with the requirements of the contract.  The effect of this doctrine is that a promisee cannot seize upon a trivial failure of performance to avoid its own obligations.  However, there can be a fine line between what is trivial and what a more serious failure to perform is.  In this case, the tour went to a mountain that was only 2 kilometers away from the mountain specified in the contract.  Arguably, Shaw could have still seen Castle Mountain from Mount Assiniboine only 2 kilometers away.  Although Shaw may have been disappointed, Universal did actually substantially perform its obligations under the contract.  Therefore, Shaw cannot discharge her obligations under the agreement.

Universal again breached its contract with Shaw by booking her into a small hotel in Calgary, instead of accommodating her in Banff as specified in the contract.  Shaw could very well argue that this breach is major enough to allow her to treat the contract as discharged.  However, if the courts disagree with Shaw, she does have an alternative remedy at her disposal.  When a promisor has breached the contract, yet has performed substantially, the promisor’s claim to the contract can be reduced by the amount of damages caused by its defective performance.  In this case, if Shaw can prove damages, she is entitled to a refund of that amount.

It would be helpful to know the exact terms of the contract.  For instance, if the tour was centered around a visit to Castle Mountain, or if Castle Mountain was merely mentioned as a likely tour stop.  Knowing Shaw’s state of mind as she entered into the agreement would be helpful to determine the degree of the breach.  Also, the specific pricing for each portion of the tour would be helpful in determining damages.

Works Cited

Dakin & Co. Ltd. v. Lee, (1916) 1 K.B.566.

Miller v. Advanced Farming Systems Ltd., (1969) S.C.R. 845.

Sail Labrador Ltd. v. Challenge One, (1999) 1 S.C.R. 265.