Common Law Performance Issues Flashcards
Substantial Performance
Under a common law K, if one party has substantially performed, the other party is obligated to perform and complete performance
“Substantial” - usually considered at least halfway complete
* Less than perfect performance by one party does not excuse the other party from his obligations
* Thus, substantial performance by A obligates B to perform; but B may seek money damages for the difference between the performance rendered and the performance expected
Note - look for substantial performance issues in construction Ks or o
Material Breach
Material breach occurs when one party’s failure to perform under the K substantially deprives the other party of the benefit they bargained for
Rules concerning common law material breach:
* Material breach by one party excuses performance by the other
* Materiality of breach is a question of fact (and thus less likely to be tested on the MBE)
* Damages are recoverable for any breach
Timeliness of performance
*Failure to perform by the time stated in a K is not a material breach if performance is rendered within a reasonable time after the time stated
*Exception - “time is of the essence” clauses
* If timely performance is essential as stated in the K, failure to perform by that time is a material breach
* Arises if one party indicates as a term of the K that performance by a given date is essential
Note - material breach rules do not apply to UCC Ks
