Entire Obligation

The Court of Appeal in Glaser v Atay [2024] EWCA Civ 1111 approved, at [72], the statement in Chitty on Contracts (para 24-029) that 'Where a party has performed only part of an entire obligation it can normally recover nothing, neither the agreed price' - since it is not due under the contract's terms - 'nor any smaller sum for the value of its partial performance, since the court has no power to apportion the consideration'. This is the modern restatement of the rule historically associated with Cutter v Powell (1795), now qualified in appropriate cases by the doctrine of substantial performance.

Whether an obligation is 'entire' is a question of construction. In Glaser v Atay, barristers had agreed single global fees for preparing for and appearing at two hearings, payable in staged instalments; the Court of Appeal agreed with the first-instance judge, at [124], that 'the contracts were not divisible but were contracts of entire obligation', because the instalments were not payable for discrete, separate items of work but were staged prepayments towards one indivisible engagement. That contrasts with a divisible contract, where discrete obligations attract discrete payment as each is performed.