Contracts Act · s 40

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40.
Effect of refusal of party to perform promise wholly
When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.
Illustrations
(a)
A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during the next 2 months, and B engages to pay her $100
for each night’s performance. On the sixth night, A wilfully absents herself from the theatre.
B is at liberty to put an end to the contract.
(b)
A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during the next 2 months, and B engages to pay her at the rate of $100 for each night. On the sixth night, A wilfully absents herself. With the assent of
B, A sings on the seventh night. B has signified his acquiescence in the continuance of the contract and cannot now put an end to it, but is entitled to compensation for the damage sustained by him through A’s failure to sing on the sixth night.
By whom contracts must be performed

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s 40Effect of refusal of party to perform promise wholly

When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.

Illustrations

(a)

A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during the next 2 months, and B engages to pay her $100

for each night’s performance. On the sixth night, A wilfully absents herself from the theatre.

B is at liberty to put an end to the contract.

(b)

A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during the next 2 months, and B engages to pay her at the rate of $100 for each night. On the sixth night, A wilfully absents herself. With the assent of

B, A sings on the seventh night. B has signified his acquiescence in the continuance of the contract and cannot now put an end to it, but is entitled to compensation for the damage sustained by him through A’s failure to sing on the sixth night.

By whom contracts must be performed