CONDITIONS AND INNOMINATE TERMS

Rice (t/a the Garden Guardian) v Great Yarmouth Borough Council ((2000) unreported, 30 June, CA)

A contractual undertaking that the contractor will perform the agreed services in a proper and workmanlike manner is likely, in the absence of some express designation of the term, to be an innominate term rather than a condition of the contract. The employer’s ability to terminate the contract on breach will therefore depend on the effect of the breach, in accordance with Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha [1962] 2 QB 26, CA. Where the contract is for the provision of public services of a variegated nature over a substantial period, the power to terminate is likely to depend on the cumulative effect of the breaches in question, and on the indications they give as to the contractor’s future performance over the surviving period of the original contract, rather than on any single incident of breach.