South Australian Current Acts South Australian Current Acts (1) In this Act,
unless the contrary intention appears—
"association" includes a company or other body corporate;
"contract" includes a severable part of a contract;
"contractual benefit", in relation to a contract, means—
(a) a
benefit received by a party under the contract;
(b) a
benefit that is received by a party otherwise than under the contract
but—
(i)
at a cost to the party that is taken into account under
this Act in calculating the value of the contractual performance of that
party; or
(ii)
in circumstances in which the receipt of the benefit
constitutes part of the contractual performance of that party;
"contractual performance" or "performance", of a party to a contract, means
the performance by the party of contractual obligations and includes anything
done by the party preparatory to the performance of a contractual obligation;
"contractual return", of a party to a contract, means the figure (which may be
positive, zero, or negative) obtained by subtracting from the value of the
contractual benefits of that party the value of the contractual performance of
that party;
"court" includes an arbitrator;
"frustration", in relation to a contract for the sale of goods, includes
avoidance of the contract under section 7 of the Sale of Goods Act 1895
;
"party", to a contract, does not include a person who is a party to the
contract only in the capacity of a guarantor or indemnifier.
(2) A reference in
this Act to the value of the contractual performance of a party to a contract
is—
(a)
where the performance consists of a monetary payment—a reference to the
amount of the payment;
(b)
where the contract itself places a value on the performance or such a value
can be deduced from the contract—that value;
(c) in
any other case—a reference to an amount calculated as follows:
(i)
the costs incurred by the party in carrying out, or
preparatory to carrying out, contractual obligations (including, in addition
to actual expenditures, a reasonable allowance for work done by the party)
will be calculated; and
(ii)
if it appears that the party would, assuming that the
contract had been fully performed, have made a profit or loss, the percentage
profit or loss will be estimated, and the amount arrived at under
subparagraph (i) increased or reduced by that percentage,
(and for the purposes of this paragraph it is immaterial that the other
parties to the contract may have received no benefit from the performance
referred to above).
(3) Where a contract
is frustrated by an event that affects the value of contractual benefits
received under the contract, that effect on value will be taken into account
in any valuation of those benefits made for the purposes of this Act.
(4) Where an event
occurring before, or resulting in, the frustration of a contract diminishes
the value of a contractual benefit and—
(a) the
event consists of, or arises from, a negligent act or omission for which a
particular party to the contract is responsible;
(b) the
risk of the event occurring is, by law or custom, to be borne by a particular
party to the contract or is a risk against which a particular party to the
contract should, in accordance with ordinary prudence or good business
practice, have insured;
(c) that
event consists of, or arises from, an act or omission for which a particular
party to the contract is responsible but which is extraneous to the contract,
that party will, for the purposes of this Act, be taken to have received a
contractual benefit (in addition to any benefits actually received) equivalent
to the amount of that diminution of value.