the contract is there a need to have a further ‘integrity interest’ to deal with such cases.

There is, however, no one objectively correct set of terms or definitions for the interests protected by the law. Different schemes might equally be capable of explaining the results produced by the courts. It does seem, however, that a scheme like Fuller and Perdue’s, conceived only with damages for breach of contract in mind, is too narrow, given that there are types of contractual remedy other than damages, and that there is an increasing tendency in all jurisdictions to consider the field of obligations in the round. It would be preferable to suggest a scheme which can be used across the field of obligations. That being so, the scheme suggested here may commend itself. Whatever scheme is used, however, the important thing for present purposes is to be able to identify whether the remedial regime in different jurisdictions is supportive of the value of promises. To explore whether that is so, the classification suggested above will be adopted, though competing classifications would be likely to produce the same conclusions.

2.  Mutuality of promises and withholding of performance

Is A entitled to withhold performance under its promise because B has not performed a promise made by it in favour of A?7 Such an entitlement (sometimes referred to under Roman law’s exceptio non adimpleti contractus) will usually be held to exist if performance of A’s duty is conditional or contingent on performance of B’s (‘I promise to do x if you do y’), if that is, to put it another way, the relevant promises of the parties are mutual, synallagmatic, or reciprocal (the terms may be used interchangeably). If such mutuality characterises an undertaking, then it is perfectly consistent with respect for the nature of the promise in question to allow the promisor not to perform if the condition of counter-performance has not been met, given that all such a course of action does is to construe the promise strictly according to its conditional nature. On the other hand, if mutuality is not a characteristic of the undertaking, then respect for the nature of the promise suggests that the promisor should be compelled to perform absolutely, this again doing no more than holding the promisor to the promise according to its unconditional nature. As will be seen

7Evidently this issue does not arise in the case of gratuitous contracts (in those jurisdictions where such contracts are permitted), as in such contracts the promisor is not entitled to any counter-performance.

being for the party bringing any claim to prove what the intention of the parties was;

(2)the independence of contract terms may be presumed, that is to say it may be presumed that no specific obligation on the one side is the counterpart of any specific obligation on the other, it being for the party bringing any claim to overturn such a presumption if it so wishes and is so able;

(3)‘general mutuality’ may be presumed, which is to say that all the obligations on one side may be deemed to be the counterpart of all the obligations on the other side, such that failure to perform any obligation by A would give the right to B to withhold any or all of the obligations on its side; or

(4)‘targeted mutuality’ may be presumed, which is to say that specific obligations on A’s part may be deemed to be the counterpart of specific obligations on B’s part, so that only breach of specifically countervailing obligations would give rise to a right to withhold performance. How presumed targeting would operate, that is to say, how precisely the presumed pairings of obligations would be determined, would usually be expected to depend on the type or class of contract in question (for instance, sale, employment, and so forth).

Conceivably a mixture of approach (3) and (4) may operate, by applying general mutuality except in the case of certain types of contract, where targeted mutuality could apply. For instance, if mutuality were to be presumed generally, it might thus apply in the case of a lump-sum contract, where a number of tasks were to be performed in exchange for a single sum of money, but targeted mutuality could be presumed in contracts for staged works, those being contracts where various tasks are each to be performed in stages in exchange for a specified portion of the overall price, in which case each portion would be presumed to be the counterpart only of the specific task for which it was to be tendered.

In applying the idea of mutuality of obligation, it is usually significant when performance falls due under a contract. If a promisor is required to perform its promise ahead of the other party’s counter-performance, then such a promisor must perform first and can have no justifiable reason for withholding performance, unless it is by virtue of a jurisdictional rule that a reasonable apprehension that the other party is going to be unable to perform allows the withholding of performance.

The question of the position adopted by various jurisdictions is now considered.

(a)  The Common law

In English law, despite the existence of the requirement of consideration – a requirement about the need for mutual consideration – no independent doctrine of mutuality as such exists in the modern law. There does exist, however, a classification of contract terms into conditions precedent, concurrent conditions and independent promises, intended to deal with the question posed above of whether performance may ever justifiably be withheld by a promisor. This classification hinges on the proper interpretation of the intended nature of the promise in question. There is no general, default rule about the mutuality of terms, or the order of performance of terms, though certain presumptions have been developed through precedent and under legislation over time.

Under the English classification, a contract term is a ‘condition prece­ dent’ if the duty it embodies must be fulfilled in order for a duty on the other side to become exigible. As explained above, such conditionality may be expressly stated (‘I promise to do x if and only if you do y’), but it may also be inferred from the conduct and statements of the parties.9 On the other hand, the promise of each party may fall due concurrently, so that neither A nor B need perform the relevant duty until the other performs as well, and neither may withhold performance on the basis that the other is supposed to perform first. Finally, a contractual promise on the one side will be independent of a promise on the other if the former promise may be enforced even though the latter has been breached. Which position is to prevail in respect of a particular contract term is a matter for the parties, though certain presumptions applicable to different types of contract exist, either as a result of judicial decision or statutory provision. Thus, in sales of goods contracts, delivery of the goods and payment of the price are concurrent conditions,10 whereas in leases the duty of the tenant to pay the rent and the duty of the landlord to undertake repairs to the property are promises independent of the other.11

Because the third position, that of independent promises, creates a risk for a party that it may have to perform even if the other has breached (leaving it only with the route of raising a claim against the party in breach), English courts have been reticent to reach the conclusion that

  9 Trans Trust SPRL v. Danubian Trading Co. [1952] 2 QB 297.

10Sale of Goods Act 1979, s. 28.

11Beale, Chitty on Contracts, para. 21–038. However, in a case of a breach by a landlord of his duty to undertake repairs, the tenant may be entitled to an equitable set-off of the rent due.