CACI No. 312. Substantial Performance
Judicial Council of California Civil Jury Instructions (2023 edition)
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312.Substantial Performance
[Name of defendant] contends that [name of plaintiff] did not perform all
of the things that [name of plaintiff] was required to do under the
contract, and therefore [name of defendant] did not have to perform [his/
her/nonbinary pronoun/its] obligations under the contract. To overcome
this contention, [name of plaintiff] must prove both of the following:
1. That [name of plaintiff] made a good faith effort to comply with
the contract; and
2. That [name of defendant] received essentially what the contract
called for because [name of plaintiff]’s failures, if any, were so
trivial or unimportant that they could have been easily fixed or
paid for.
New September 2003; Revised May 2020
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention that the plaintiff did not perform all of the
things required under the contract.
Sources and Authority
• “ ‘Substantial performance means that there has been no willful departure from
the terms of the contract, and no omission of any of its essential parts, and that
the contractor has in good faith performed all of its substantive terms. If so, he
will not be held to have forfeited his right to a recovery by reason of trivial
defects or imperfections in the work performed.’ ” (Connell v. Higgins (1915)
170 Cal. 541, 556 [150 P. 769], citation omitted.)
• The Supreme Court has cited the following passage from Witkin with approval:
“At common law, recovery under a contract for work done was dependent upon
a complete performance, although hardship might be avoided by permitting
recovery in quantum meruit. The prevailing doctrine today, which finds its
application chiefly in building contracts, is that substantial performance is
sufficient, and justifies an action on the contract, although the other party is
entitled to a reduction in the amount called for by the contract, to compensate
for the defects. What constitutes substantial performance is a question of fact,
but it is essential that there be no wilful departure from the terms of the contract,
and that the defects be such as may be easily remedied or compensated, so that
the promisee may get practically what the contract calls for.” (Posner v.
Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 186-187 [14 Cal.Rptr. 297, 363 P.2d
313]; see also Kossler v. Palm Springs Developments, Ltd. (1980) 101
Cal.App.3d 88, 101 [161 Cal.Rptr. 423].)
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• “ ‘Whether, in any case, such defects or omissions are substantial, or merely
unimportant mistakes that have been or may be corrected, is generally a question
of fact.’ ” (Connell, supra, 170 Cal. at pp. 556-557, internal citation omitted.)
• “The doctrine of substantial performance has been recognized in California since
at least 1921, when the California Supreme Court decided the landmark case of
Thomas Haverty Co. v. Jones [citation], in which the court stated: ‘The general
rule on the subject of [contractual] performance is that “Where a person agrees
to do a thing for another for a specified sum of money to be paid on full
performance, he is not entitled to any part of the sum until he has himself done
the thing he agreed to do, unless full performance has been excused, prevented,
or delayed by the act of the other party, or by operation of law, or by the act of
God or the public enemy.” [Citation.] [¶] . . . [I]t is settled, especially in the
case of building contracts, where the owner has taken possession of the building
and is enjoying the fruits of the contractor’s work in the performance of the
contract, that if there has been a substantial performance thereof by the
contractor in good faith, where the failure to make full performance can be
compensated in damages, to be deducted from the price or allowed as a
counterclaim, and the omissions and deviations were not willful or fraudulent,
and do not substantially affect the usefulness of the building for the purposes for
which it was intended, the contractor may, in an action upon the contract,
recover the amount unpaid of his contract price less the amount allowed as
damages for the failure in strict performance. [Citations.]’ ” (Murray’s Iron
Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1291-1292 [71 Cal.Rptr.3d
317].)
• “We hold that a provision in the parties’ contract making time of the essence
does not automatically make [the defendant’s] untimely performance a breach of
contract because there are triable issues regarding the scope of that provision and
whether its enforcement would result in a forfeiture to [the defendant] and a
windfall to [the plaintiff].” (Magic Carpet Ride LLC v. Rugger Investment
Group, LLC (2019) 41 Cal.App.5th 357, 360 [254 Cal.Rptr.3d 213].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 843-884
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.23
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.30, 50.31 (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08[2], 22.16[2], 22.37, 22.69
CACI No. 312 CONTRACTS
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