6.6 Substantial Performance

• Library: Contract Law in Virginia (Virginia CLE) (2019 Ed.)

6.6 SUBSTANTIAL PERFORMANCE

6.601 Overview. The doctrine of substantial performance is not a complete defense to liability for breach of contract but rather prevents total

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forfeiture by a contracting party who is guilty of only trivial breaches of contract. ⁹³

"Substantial performance is the antithesis of material breach." ⁹⁴ For the doctrine of substantial performance to apply, the part unperformed must not destroy the value or the purpose of the contract. ⁹⁵ Under Virginia law, this proposition could be described as the "root of the contract doctrine." In Neely v. White, ⁹⁶ the court held that the plaintiff's breach did not go to the root of the contract, and thus, the plaintiff was not precluded from bringing suit. ⁹⁷

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6.602 The UCC and Substantial Performance. Under the UCC, a buyer is entitled to strict performance of the contract. Section 8.2-601 of the Virginia Code requires that the tender of delivery must conform to the contract, or the buyer may reject the goods. This harsh rule is somewhat mitigated by sections 8.2-508(1) and 8.2-608(2), which (i) allow revocation of acceptance only if the nonconformity "substantially impairs" the value of the goods and (ii) extend the seller's right to cure in some circumstances beyond the point when the time for performance has expired. ⁹⁸

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Notes:

^[93] Ballou v. Basic Constr. Co., 407 F.2d 1137, 1140 (4th Cir. 1969) (holding that the substantial performance defense was unavailable to a contractor who fabricated only 45 acceptable...