Legal Dictionary of Pakistan

Misperformance

See MISPERFORMANCE.

Nonperformance

See NONPERFORMANCE.

Performance

n. 1. The successful completion of a contractual duty, usu. resulting in the performer's release from any past or future liability; EXECUTION (2). - Also termed full performance. - perform, ub. Cf NONPERFORMANCE.

action in equity. An action that seeks equitable relief, such as an injunction or specific performance, as opposed to damages.

alternative-methods-of-performance contract

see alternative contract under contract.

course of performance

A sequence of previous performance by either party after an agreement has been entered into, when a contract involves repeated occasions for performance and both parties know the nature of the performance and have an opportunity to object to it. A course of performance accepted or acquiesced in without objection is relevant to determining the meaning of the agreement. UCC § 2-208; § 2A-301(a). Cf. COURSE OF DEALING; trade usage under USAGE "[C]ommon law courts have recognized the necessity of learning how people usually talk and what they usually mean by their language before one interprets their contracts .... '[C]ourse of performance' refers to a pattern of performance of the contract that is the subject of the dispute, as contrasted to 'course of dealing' which refers to the pattern of performance in prior contracts between the same parties." Claude Rohwer & Gordon D. Schaber, Contracts in a Nutshell 171-73 (4th ed. 1997) "The phrase 'course of performance' relates to the way the parties have acted in performance of the particular contract in question. The judicial inquiry on this point is limited to the way the parties have acted in carrying out the particular contract that is in controversy, as distinguished from a general pattern of dealing that may embrace many other contracts or transactions between the parties." Ronald A. Anderson, Uniform Commercial Code § 1-205:74 (1997).

defective performance

A performance that, whether partial or complete, does not completely comply with the contract. ( One example is late performance.

full performance.

See PERFORMANCE.

future performance

Performance in the future of an obligation that will become due under a contract.

future performance.

See PERFORMANCE.

impossibility-of-performance doctrine

The principle that a party may be released from a contract on the ground that uncontrollable circumstances have rendered performance impossible. Cf. FRUSTRATION; IMPRACTICABILITY.

nonoperative performance bond

A performance bond that is not currently in effect but is activated upon the issuance of the buyer's letter of credit or other approved financing.

nonoperative performance bond.

See PERFORMANCE BOND.

offer of performance. Contracts.

One party's reasonable assurance to the other, through words or conduct, of a present ability to fulfill contractual obligations. a When performances are to be exchanged simultaneously, each party is entitled to refuse to proceed with the exchange until the other party makes an appropriate offer of performance. "The requirement of an offer of performance is to be applied in the light of what is reasonably to be expected by the parties in view of the practical difficulties of absolute simultaneity and is subject to the agreement of the parties, as supplemented or qualified by usage and course of dealing." Restatement (Second) of Contracts § 238 cmt. b (1981).

operative performance bond

A performance bond that has been activated by the issuance of the buyer's letter of credit or other approved financing.

operative performance bond.

See PERFORMANCE BOND.

part performance

See PART PERFORMANCE.

part performance.

1. The accomplishment of some but not all of one's contractual obligations. 2. A party's execution, in reliance on an opposing party's oral promise, of enough of an oral contract's requirements that a court may hold the statute of frauds not to apply. 3. PART-PERFORMANCE DOCTRINE.

part-performance doctrine.

The equitable principle by which a failure to comply with the statute of frauds is overcome by a party's execution, in reliance on an opposing party's oral promise, of an oral contract's requirements. -Sometimes shortened to part performance.

performance bond

1. A bond given by a surety to ensure the timely performance of a contract. ( In major international agreements, performance bonds are typically issued by banks, but sometimes also by insurance companies. The face amount of the bond is typically 2% of the value of performance, but occasionally as much as 5%. 2. A third party's agreement to guarantee the completion of a construction contract upon the default of the general contractor. -Also termed completion bond; surety bond; contract bond. Cf common-law bond under BOND (2).

performance bond.

See PERFORMANCE BOND.

performance fund

A mutual fund characterized by an aggressive purchase of stocks expected to show near-term growth.

performance plan

A bonus compensation plan in which executives are paid according to the company's growth.

performance right

A copyright holder's exclusive right to recite, play, act, show, or otherwise render the protected work publicly, whether directly or by technological means (as by broadcasting the work on television).

performance shares

Stock given to an executive when the corporation meets a performance objective.

performance stock

See glamour stock.

revolving performance bond

A performance bond that is in effect on a continuing basis for the duration of the contract, usu. plus an additional number.of days (often 45).

specific performance

See SPECIFIC PERFORr MANCE.

substantial performance

Performance of the primary, necessary terms of an agreement. See SUBSTANTIAL-PERFORMANCE DOCTRINE. 2. The equitable doctrine by which acts consistent with an intention to fulfill an obligation are construed to be in fulfillment of that obligation, even if the party was silent on the point. 3. A company's earnings. 4. The ability of a corporation to maintain or increase earnings.

substantial-performance doctrine

The equitable rule that, if a good-faith attempt to perform does not precisely meet the terms of the agreement, the agreement will still be considered complete if the essential purpose of the contract is accomplished. 9 Courts may allow a remedy for minimal damages caused by the deviance. - Also termed substantial-compliance rule. Cf. PERFECT-TENDER RULE. "There has arisen in the United States an indefinite doctrine sometimes referred to as that of substantial performance. It is a doctrine that deals not with performance of a duty as a discharge thereof but with performance by the plaintiff as a condition precedent to the active duty of performance by the defendant. Where a defendant is sued for non-performance he cannot avoid paying damages by showing that he substantially performed or came near performing or gave something equally good; but he can always successfully defend if in fact some condition precedent to his own duty has not been fulfilled by the plaintiff." William R. Anson, Principles of the Law of Contract 422 (Arthur L. Corbin ed., 3d Am. ed. 1919).

tender of performance

An offer to perform, usu. necessary to hold the defaulting party to a contract liable for breach.

up-front performance bond

See PERFORMANCE BOND.