When Has a Contractor Substantially Performed?
Kegler Brown Construction Newsletter June 1, 2003
It is a general rule that a party must substantially perform its obligations under a contract to recover for breach of contract. A case of the Franklin County Court of Appeals recently dealt with this important issue and found that a contractor does not breach a contract when the amount of non-conforming work is nominal, or in other words, the unperformed or wrongfully performed work does not destroy the value or purpose of the contract. Hansel v. Creative Concrete & Masonry Constr. Co., 148 Ohio App. 3d 53 (2002).
In that case there was inadequate thickness of concrete as well as cracking and spalling. The deficiencies were not enough to warrant replacement of the concrete driveway, so the court found that a deduction could be made by the owner for the cost of repair but allowed the contractor to recover the balance of contract because it had still substantially performed its contractual obligations.