and by the end of August the painter has not done the work, I would
probably want to introduce a term that if the work was not undertaken by
the end of September then the contract would be breached. Time would
then have become ‘of the essence’.
Vicarious performance
What if one person carries out the duties of another under a contract?
Performance by a third party is known as vicarious performance, and is
allowed in certain circumstances. If the task is not of a personal nature, for
example the supply of an item which is easily obtainable, then it is not
important who actually delivers it. In that case, providing that the main
terms are fulfilled, so that the item is exactly as expected, the price is
correct, etc., then vicarious performance would be acceptable in place of
performance by the original party. If, however, the task is of a personal
nature, for example the painting of a portrait, then vicarious performance
is unlikely to be acceptable.
Edwards v Newland (1950) concerned the storage of furniture in a
warehouse, and it was said that the personal skill and care of the
warehouseman is ‘of the essence’ of such a contract. It was held that
passing the property on to another party to store was not acceptable, and
the obligations had not therefore been performed vicariously. The court
said that care was taken in choosing a firm to store goods, and a particular
firm may be chosen to carry out tasks because of their skill. The transfer of
this work to another would not in such cases be allowed as performance.
This seems reasonable in some circumstances, for example if a storage
firm had been chosen because it had storage available at a certain
temperature, or because its employees were experienced in transporting
musical instruments. However, in other circumstances vicarious
performance is a practical option, and is often used with coach hire, another
firm supplying a coach of similar specification for an outing, enabling
further and possibly more valuable bookings to be taken.
Agreement
In the example above, if the party booking the coach decided to continue on
the trip using the coach supplied, and then on return agreed with the original
coach company to pay less, as the coach was of a lower specification than
214 Contract law
What if a luxury coach which had 50 reclining seats, a video player and drink-
making facilities was booked for a two-day trip to France, and at the starting
time a coach arrived, but an older model with 45 fixed seats, no video player
and no drink-making facilities?