On the original question, this issue is everyday in the context of employment law. Whether a contract requires personal service or a "right of substitution" is a classic criterion
of whether it counts as "employment" for common law and statutory purposes. The factor is discussed in eg
Autoclenz Ltd v Belcher & Ors [2011] UKSC 41, but also see any text on the law of work. The going view is that the question is entirely one of interpreting the contract.
Where a contract is silent as to whether a party can delegate performance, in an employment context the assumed default is that personal service is required, so that any ability to delegate has to be added in explicitly. (That's why in this context it is sometimes erroneously called a "right to substitution".) In other contexts, the assumed default is going to be that delegation is allowed. Cases that toe the line require an objective assessment of factors like whether a party has particular skills and expertise as well as the words of the document. Andrew Tettenborn's example gets at the right sort of thing, though it doesn't do it for me: if I hire a tip-top firm of removers, I will generally assume that appropriate subcontracting is part of their tip-top business practices.
As to the rest I agree with Robert Stevens that we can understand delegated performance as involving agency. Everyday agencies we don't talk about are for tightly delimited purposes, and as Andrew Dickinson points out the logic seems necessary to explain why A's subcontractor can render A liable for faulty performance while the confused stranger who repairs the bridge cannot. I think this logic has to apply generally to a delegate whether or not a subcontractor, though of course in a commercial context a contractor will want their delegate to be a subcontractor.
Where a contract is silent as to whether a party can delegate performance, in an employment context the assumed default is that personal service is required, so that any ability to delegate has to be added in explicitly. (That's why in this context it is sometimes erroneously called a "right to substitution".) In other contexts, the assumed default is going to be that delegation is allowed. Cases that toe the line require an objective assessment of factors like whether a party has particular skills and expertise as well as the words of the document. Andrew Tettenborn's example gets at the right sort of thing, though it doesn't do it for me: if I hire a tip-top firm of removers, I will generally assume that appropriate subcontracting is part of their tip-top business practices.
As to the rest I agree with Robert Stevens that we can understand delegated performance as involving agency. Everyday agencies we don't talk about are for tightly delimited purposes, and as Andrew Dickinson points out the logic seems necessary to explain why A's subcontractor can render A liable for faulty performance while the confused stranger who repairs the bridge cannot. I think this logic has to apply generally to a delegate whether or not a subcontractor, though of course in a commercial context a contractor will want their delegate to be a subcontractor.
Yours truly &c.,
On Fri, Nov 18, 2022 at 8:58 AM Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:
Dear Ger & Ors, There's a slight problem here. The mere fact that you performed badly, ie broke your contract in performing, doesn't stop you claiming the price of performance: see cases like Hoenig v Isaacs. The question is whether you have substantially done what you have promised (whether well or not): which means delegation needs to be separately treated. Andrew
On 17/11/2022 23:05, Gerard Sadlier wrote:
In the interesting case Andrew refers to and the hypotheticals he posits, the key question seemed to be whether there was proper performance i.e. did the counter-party provide (through a delegate or otherwise) that which they had promised. So in the solicitor's case, they had not provided the service promised because the employee was unqualified and that was in breach of contract. The same point would arise in the removers example he gives, I think. These are objections based on a failure to perform properly, rather than an inability to delegate. Surely, one can only object to delegation where either (i) one has expressly provided that the work is to be done by a particular person or class of persons (say solicitors or engineers or senior counsel of 10 years' standing) or to a particular standard or (ii) some such restriction is implied because of the nature of the contract or services in question. Kind regards Ger On 11/17/22, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:I don’t think agency can be a complete red herring. Contracts for the provision of goods and services aren’t (at least ordinarily) bets about whether someone or other will provide the goods or services in the future. Rather they’re agreements that one party will provide those goods and services. If I employ a builder to repair my bridge, I don’t necessarily expect him to do the work personally. If the builder is a corporation it will do so through its employees. Or it may be permissible to sub-contract the work to somebody to do all or some of it on the builder’s behalf. But if a stranger subsequently comes along and mistakenly repairs the bridge, thinking it was theirs, I don’t think the builder has performed and is thereby entitled to be paid. His obligation to repair the bridge may have been discharged, but here through frustration (the work no longer needs to be done) rather than performance. It is only if the work is done by someone authorised to do it on his behalf (or who purports to do it on his behalf whose actions are then ratified) that performance is thereby made. Performance, as the word implies, requiring some doing either by the promisor or somebody on his behalf. Rob From: Jason W Neyers <jneyers@uwo.ca> Sent: 17 November 2022 18:45 To: Krish <krishneel@gmail.com>; Stephane.Serafin <Stephane.Serafin@uottawa.ca> Cc: a.m.tettenborn <a.m.tettenborn@swansea.ac.uk>; obligations <obligations@uwo.ca> Subject: RE: ODG: Vicarious Performance in Contract Law I post on behalf of Steve Hedley: In principle it must be a matter of interpretation. For most commercial goods and services, the natural interpretation will surely be that A is paying for the goods/services to be provided, and who provides them is beside the point. But there would be some cases where the personality matters; for example, it would surely be implicit in most (?all) employment contracts that the employee should do the work, not merely that the work should be done. There are of course borderline cases, e.g. Boulton v Jones (1857). ‘Agency’ seems to me to be a red herring in this context. Steve Hedley 9thlevel.ie<https://eur03.safelinks.protection.outlook.com/?url=http%3A%2F%2F9thlevel.ie%2F&data=05%7C01%7CA.M.Tettenborn%40Swansea.ac.uk%7C15bbb7d4634d4b2f967f08dac8f040ea%7Cbbcab52e9fbe43d6a2f39f66c43df268%7C0%7C0%7C638043231446981374%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=vtoFqGsNnzjQYRkXKI16DM%2BkVS4QSvreEzq%2FkLD4mMc%3D&reserved=0> private-law-theory.org<https://eur03.safelinks.protection.outlook.com/?url=http%3A%2F%2Fprivate-law-theory.org%2F&data=05%7C01%7CA.M.Tettenborn%40Swansea.ac.uk%7C15bbb7d4634d4b2f967f08dac8f040ea%7Cbbcab52e9fbe43d6a2f39f66c43df268%7C0%7C0%7C638043231446981374%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=VNzUMgLMcVCqNPa6Je4YsBKOWfVcW251F0ikHT2eSy8%3D&reserved=0> ssrn.com/author=32978<https://eur03.safelinks.protection.outlook.com/?url=http%3A%2F%2Fssrn.com%2Fauthor%3D32978&data=05%7C01%7CA.M.Tettenborn%40Swansea.ac.uk%7C15bbb7d4634d4b2f967f08dac8f040ea%7Cbbcab52e9fbe43d6a2f39f66c43df268%7C0%7C0%7C638043231446981374%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=a76u58uKNRtmwQn4cXHJQQE2u3AzBsoIjjtVnOT5WUY%3D&reserved=0> ________________________________ [esig-law] Jason Neyers Professor of Law Faculty of Law Western University Law Building Rm 26 e. jneyers@uwo.ca<mailto:jneyers@uwo.ca> t. 519.661.2111 (x88435) From: Krish <krishneel@gmail.com<mailto:krishneel@gmail.com>> Sent: November 17, 2022 1:29 PM To: Stephane.Serafin <Stephane.Serafin@uottawa.ca<mailto:Stephane.Serafin@uottawa.ca>> Cc: a.m.tettenborn <a.m.tettenborn@swansea.ac.uk<mailto:a.m.tettenborn@swansea.ac.uk>>; Jason W Neyers <jneyers@uwo.ca<mailto:jneyers@uwo.ca>>; obligations <obligations@uwo.ca<mailto:obligations@uwo.ca>> Subject: Re: ODG: Vicarious Performance in Contract Law You don't often get email from krishneel@gmail.com<mailto:krishneel@gmail.com>. Learn why this is important<https://aka.ms/LearnAboutSenderIdentification> I agree with Stéphane, and think it comes down to what exactly is promised. Is it the result that has been promised, or is it the act/attempt, or both? If it is only the result that is promised, I can't see any problem in principle with subcontracting the work out to someone else. Krish On Thu, 17 Nov 2022 at 10:24, Stéphane Sérafin <Stephane.Serafin@uottawa.ca<mailto:Stephane.Serafin@uottawa.ca>> wrote: Absent a duty requiring personal service in the contract I don’t really see what the problem with delegated performance would be. The promisor is bound to deliver the book, and if the book is not delivered then the promisor is liable for breach. But if the promisor does deliver the book to the promisee, even through an intermediary, then the book has been delivered. Not to go full civilian here but the Civil Code of Québec has an article that expressly deals with this issue – art. 1555 – and I see no reason to think that the common law position should be much different. From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk<mailto:a.m.tettenborn@swansea.ac.uk>> Sent: November 17, 2022 1:14 PM To: Jason W Neyers <jneyers@uwo.ca<mailto:jneyers@uwo.ca>>; obligations <obligations@uwo.ca<mailto:obligations@uwo.ca>> Subject: Re: ODG: Vicarious Performance in Contract Law Attention : courriel externe | external email There certainly are some cases where subcontracting has deprived a claimant of the right to the price. A nice one is the solicitors' case of Pearless de Rougemont & Co v Pilbrow [1999] 3 All E.R. 355, where a law firm delegated a job in breach of contract to an unqualified employee: the court was clear that however well the latter actually did the job the firm hadn't rendered contractual performance and couldn't claim their fee. -Andrew On 17/11/2022 17:14, Jason W Neyers wrote: Dear Colleagues: Suppose that A wants to ship something (a book) from Toronto to X in another location. A contracts with B Ltd. to do the shipping. The book arrives and X takes possession. It turns out that as a matter of fact B Ltd. did not do the shipping (or all of the shipping) but instead that other contractors did. Can A sue for breach? Can A refuse to pay the contract price if it is demanded by B Ltd? Why is the answer to these questions generally no? Is it just a question of contract interpretation or is there some legal recognition that B Ltd actually performed the contract through the “agency” of the other contractors, who performed on B Ltd’s behalf? If anyone has any views on this or knows of any good discussions in caselaw, article or textbooks, I would be delighted to be pointed in the right direction. Sincerely, [esig-law] Jason Neyers Professor of Law Faculty of Law Western University Law Building Rm 26 e. jneyers@uwo.ca<mailto:jneyers@uwo.ca> t. 519.661.2111 (x88435) You're receiving this message because you're a member of the obligations group from The University of Western Ontario. To take part in this conversation, reply all to this message. 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Andrew Tettenborn
Professor of Commercial Law, Swansea University
Institute for International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
SWANSEA SA2 8PP
Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855
Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe
Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
ABERTAWE SA2 8PP
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
See us on Twitter: @swansea_dst
Read the IISTL Blog: iistl.wordpress.com
My publications can be found here and here and here
Member of the Heterodox Academy and member and adviser of the Free Speech Union
Disclaimer: This email (including any attachments) is for the use of the intended recipient only and may contain confidential information and/or copyright material. If you are not the intended recipient, please notify the sender immediately and delete this email and all copies from your system. Any unauthorized use, disclosure, reproduction, copying, distribution, or other form of unauthorized dissemination of the contents is expressly prohibited.
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