California Civil Jury Instructions (CACI) (2017)

312. Substantial Performance

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312.Substantial Performance
[Name of defendant] contends that [name of plaintiff] did not perform all
of the things that [he/she/it] was required to do under the contract, and
therefore [name of defendant] did not have to perform [his/her/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
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of his or her contention.
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].)
• “ ‘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
• “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
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 818–819
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
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