Chapter 18 - § 18.3 • SUBSTANTIAL PERFORMANCE

• Jurisdiction: Colorado

§ 18.3 • SUBSTANTIAL PERFORMANCE

The doctrine of substantial performance prevents injustice where a contractor has significantly performed but an owner wants to avoid paying it because of insubstantial defects.⁶⁶ One of the elements a party must prove in order to prevail on a claim of breach of contract is that the party performed the contract itself - i.e., the party did not breach it.⁶⁷ Performance means "substantial performance." In turn, "substantial performance" means that "although the conditions of the contract have been deviated from in trifling particulars not materially detracting from the benefit the other party would derive from a literal performance, he has received substantially the benefit he expected, and is, therefore, bound to pay."⁶⁸

Where a contractor constructed a building such that the walls and foundation began to crack immediately as a result of a soil condition that it did not correct, there was not substantial performance, and the contractor was not entitled to the contract balance.⁶⁹ Likewise, where a subcontractor engaged to prepare a floor for tile installation completed 90 percent of its work, but the remaining work was the most difficult to complete, there was not substantial performance since the omission was a material breach of contract.⁷⁰ However, where substantial performance has occurred, the contractor is entitled to the contract price minus deductions for the incomplete details.⁷¹

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Notes:

^[66] Jim Arnott, Inc. v. L & E, Inc., 539 P.2d 1333, 1336 (Colo. App. 1975) (not selected for official publication); see also Chapter 10, "The Contractor."

^[67] Western Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992).

^[68] Newcomb v. Schaefler, 279 P.2d 409, 412 (Colo. 1955).

^[69] Id.

^[70] Malott & Peterson Grundy, Inc. v. Reynolds Constr. Co., 472 P.2d 701, 703 (Colo. App. 1970) (not selected for official publication).

^[71] Ross Mining & Milling Co. v. Sethman, 50 Colo. 33, 114 P. 287 (1911); see also D.R. Horton, Inc.-Denver v. Bischof & Coffman Constr. LLC, 217 P.3d 1262, 1272 (Colo. App. 2009) (subcontractor's substantial performance is not a bar to...