A RIGHT TO CHOOSE: A CRITICAL REVIEW AND DEFENCE OF THE MINIMUM PERFORMANCE PRINCIPLE

The minimum performance principle is a rule for determining the measure of damages for breach of contract when the defendant had at its election two or more alternative ways of performing the contract. In such cases, that mode of performance which is least onerous to the defendant is adopted as the measure of damages. Disagreement persists as to this doctrine's continued utility and how it is to be appropriately applied. The Court of Appeal for Ontario upheld the minimum performance principle in two recent cases which raised questions regarding the effect of bad faith on applying the doctrine. In light of this jurisprudence, this paper reviews leading authorities on the minimum performance principle and engages with scholarly critiques of the doctrine. With the rising prevalence of flexible relational contracts and 'termination for convenience' clauses, the minimum performance principle is likely to become a subject of more frequent litigation in the near future. This paper offers a new interpretation of the doctrine that provides a workable solution to some actual and anticipated critiques. KEYWORDS Minimum performance principle, Minimum obligation rule, Contract, Damages, Good faith
I THE ASSUMPTION OF MINIMUM PERFORMANCE: RECOGNIZING RIGHTS AND RISKS 165 A. Ability to perform as a condition for determining the least onerous option 169 B. The defendant's conduct but [...]