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Partial performance

Partial performance is where some work has been done, but where the
degree to which the obligations have been fulfilled is less than what would
be required for substantial performance. However, the difference between
substantial and partial performance is sometimes difficult to determine.
There are two important differences which should be noted:

• Partial performance must be accepted by the other party – in other words
  the innocent party really agrees not to sue for breach, but instead agrees
  to pay a lesser amount for the quantity of work done.


• Payment is made on a different basis from that for substantial
  performance. It is made on a quantum meruit, which is literally as much
  as is deserved. So, for example, if half of the work was completed, half
  of the money would be payable.

In Christy v Row (1808) this arrangement for payment was said to be based
on the theory that the parties have really discharged the contract by
agreement, in stating that if only a certain proportion of work is done then
only a certain proportion of payment will be made. The party not at fault
must have a genuine choice over whether to accept partial performance. In
Sumpter v Hedges (1898), for example, a builder did half of the work
towards building houses and stables, and then left. With a job half-done, the
defendant had no choice but to finish the work. When sued for the full price
the court held that partial performance had not been accepted, so the
contract had been breached.

Time of performance

If time is crucial to one or both parties, it may be seen to be ‘of the
essence’. The obligations then must be performed within the time expected,
and this will be considered as a term of the contract. However, the time
limit must be clear to both parties, and this is where difficulties are likely
to arise. Sometimes this will be obvious; for example, if perishable goods
are to be delivered it is obvious that the delivery should be complete within
a very short time. There are situations where it is not apparent that time is
of the essence, but it becomes clear during the course of the contract. For
example, if I ask someone in June to paint my house, ‘during the summer’,

Discharge and remedies 213

For a finding of partial

performance, there must

be a genuine choice over

whether to accept

Part built

Figure 14.1