Group work questions1&2(detail description in the attachment) Essay

Group work questions1(detail description in the attachment) - Essay Example One excuse for non-performance is impossibility. This generally means, under Australian law, that it is objectively impossible, which means that it would be impossible for anybody to perform the contract under the given circumstances (Schaffer et al, 1993). In this case, impossibility would not apply – incurring extra costs that are due to the other party’s misfortune does not make performance impossible, and the breach was only partial, not a full breach, so this would not apply. Frustration of purpose is the other excuse for non-performance (Knell v. Henry, 2 K.B. 740). This is where there is no value in performing the contract. Moreover, even though the contract had become more expensive to Northwest because of the higher bank costs, this is not an excuse nor is a frustration of purpose – Tsakiroglou& Co. Ltd. V. Noblee Thorl GmbH (1962) AC 93 states that just because the cost of performing a contract increases, that is not an excuse for non-performance. This was echoed in the ruling of Transatlantic Financing Corp. v. United States, 363 F.2d 312 (D.C. Cir. 1966). One issue that Northwest might use, under the CISG Article 79, is that it was not under obligation to perform while an impediment to performance exists. This is if the impediment is beyond the party’s control – the delay and error of PhilOre’s bank was beyond Northwest’s control; the impediment wasn’t reasonably foreseeable at the time of the contract; the impediment was unavoidable; and notice was given to other party of the effect on the contract. As for PhilOre, Northwest breached the contract to it, not just because the shipment was so late, but also because the shipment was incomplete. The reason why the shipment was incomplete was Northwest’s fault, so PhilOre should have some recourse on performing its part of the contract. According to Schaffer et al. (1993), a partial shipment could be considered to be a fundamental breach if i t presents a serious problem to the buyer and cannot be quickly remedied. If the breach is considered to be fundamental, then the buyer doesn’t have to accept delivery or pay for the goods. This is only if the buyer gives notice of avoidance. However, Northwest has to be given the chance to cure, even if the shipment is incomplete, as it is here (Schaffer et al., 1993). The seller has the chance to cure until the time for performance expires. This means that the seller has the chance to cure by substitution or replacement goods if it can be done by the date of performance called for (CISG Article 37). Northwest tried to cure the defect by supplying PhilOre with a Taiwanese supplier at no extra cost. That said, according to the second fact pattern, there were more delays, which were beyond both parties’ control. However, these events did not make performance of the contract impossible, only impracticable and might excuse the further delay. When the ore shipment did not conform to the seller’s warranty about purity, there was a cure, but the cure delayed the shipment further. Therefore, PhilOre should have been entitled to the damages that it incurred because the shipment was delayed. However, there was a mistake on the part of Northwest, in that it shipped ore that was more pure than what it had previously warranted, and more pure than what PhilOre had paid for. The English case of Bell v. Lever Brothers [1931] UKHL 2 states that a contract is only voidable in the event of a