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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 23 October 2021

The Principle of Substantial Performance

The Principle of Substantial Performance

(p.697) Fifty-One The Principle of Substantial Performance
Foundational Principles of Contract Law

Melvin A. Eisenberg

Oxford University Press

Chapter 51 concerns the principle of substantial performance. Suppose a promisor has committed a breach but has substantially performed the contract. Under the principle of substantial performance the promisor can recover expectation damages, subject to an offset for damages resulting from the breach. There are good reasons for this rule. If the parties had addressed the issue when the contract was made, it is unlikely they would have agreed that any imperfection in performance, no matter how immaterial, would bar a suit for expectation damages. Indeed, in the case of complex performances it is often virtually impossible to render a performance that is completely defect-free, and minor defects can ordinarily be cured either by the promisor or by a third party at the promisor’s expense. The principle of substantial performance is the law, apart from a limited exception concerning contracts for the sale of goods.

Keywords:   substantial performance, minor performance defect, cure, complex performance, expectation damage

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