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4.2-14  Substantial Performance of a Contract

New March 5, 2010

The <party> claims that (he/she/it) has substantially performed the contract.  Even if <party> has not complied exactly with the terms of a contract, (he/she/it) has substantially performed under the contract where (his/her/its) performance is so similar to the required performance that it is nearly equivalent to the performance for which the parties bargained.  A party has substantially performed under the contract when any deviation from the contract is minor and unimportant and does not seriously impair the purpose of the provision of the contract in question. 

If <party> has not complied with a material term of the contract, (he/she/it) has not substantially performed the contract.  <See Material Breach of Contract, Instruction 4.2-13.>

Authority

Argentinis v. Gould, 219 Conn. 151, 157 (1991); Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn. App. 367, cert. denied, 289 Conn. 956 (2008); Borrelli v. H & H Contracting, Inc., 100 Conn. App. 680, 692 n.6 (2007), appeal dismissed, 285 Conn. 553, 940 (2008); S. Williston, Contracts (4th Ed. 2000) '' 44.54, 44.55. 

Notes 

AOur precedent is clear: Parties are entitled to get that for which they bargain.@  Borrelli v. H & H Contracting, Inc., 100 Conn. App. 680, 692 (2007), appeal dismissed, 285 Conn. 553 (2008).  Only full performance discharges a party=s duty under a contract: ANothing less than full performance, however, has this effect and any defect in performance, even an insubstantial one, prevents discharge on this ground.@  2 Restatement (Second), Contracts ' 235, comment (a) (1981). 

A substantial performance charge, however, is available in the context of a defense of a breach of contract claim.  Under this doctrine, the contract breach is excused, not because compliance with the terms is objectively impossible, but because actual performance is so similar to the required performance that any breach that may have been committed is immaterial.  Borrelli v. H & H Contracting, Inc., supra, 100 Conn. App. 680, 692 n.6. 

Additionally, a substantial performance charge may be available where plaintiffs may not have fully performed the contract but nonetheless seeks to pursue contract remedies.  See, e.g., Vincenzi v. Cerro, 186 Conn. 612, 615 (1982).  Such plaintiffs, however, may only recover under a contract theory if they have substantially performed: AGenerally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied. See 2 Restatement (Second), Contracts 237, comment (d); 3A A. Corbin, Contracts (1964) 701, 710; see generally Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); Sheketoff v. Prevedine, 133 Conn. 389, 392‑93 (1947).  The balance of the contract price, therefore, is not >due= the builder. See 3A A. Corbin, supra, ' 701.@  Argentinis v. Gould, 219 Conn. 151, 157 (1991). 

Substantial performance is typically raised in the context of construction contracts; Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn. App. 367, 373, cert. denied, 289 Conn. 956 (2008); but has also been applied in the context of land sale contracts; Mihalyk v. Mihalyk, 11 Conn. App. 610, 616 (1987); and employment contracts.  Burns v. Gould, 172 Conn. 210, 221 (1977). 

The doctrine is inapplicable, however, to claims arising under the Uniform Commercial Code because, under the perfect tender rule, a buyer may reject an improper delivery if the goods or tender of delivery fail in any respect to conform to the contract.  See General Statutes ' 42a‑2‑601.  But see Franklin Quilting Co., Inc. v. Orfaly, 1 Conn. App. 249, 251 n.3 (1984) (perfect tender rule requires a Asubstantial nonconformity@ to the contract before buyer may reject goods). 

Furthermore, where a contract is fully performed, but the omissions and variations result from impracticability of performance, then the doctrine of substantial performance may not apply because impracticability may discharge the duty to perform the variations on the contract.  See Grenier v. Compratt Construction Co., 189 Conn. 144 (1983); 2 Restatement (Second), Contracts ' 235, comment (a) (1981).

 


 

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