Substantial Performance v. Perfect Tender Forum

[NYC2014]

I know what they both are, but when do you apply them? I'm not sure if it's a jurisdictional thing, or if PT is applied any time it's a UCC transaction...or if it's goods you get a choice...

Yeah, I'm pretty confused. Does anyone know the answer?

[NYC2014]

CHAMONAH!

I'm sure someone knows the answer. My K test is tomorrow morning and my jimmies are getting mighty rustled. The most I can glean from my notes and a supplement I checked was that perfect tender is used all the time, unless expressly K'ed around in K's for goods (UCC), and never in CL. Is that true?

[northerncali9]

Both are used to evaluate whether or not delivery of a non-conforming service/product is a breach of the K.

Substantial Performance is used under the CL and Perfect Tender is for the UCC.

For Substantial Performance you are looking at the extent of the non-performance and whether the injured party that did not get exactly what they wanted out of the deal was deprived of the benefit they "reasonably expected" (as opposed to having everything exactly as expected). For example, if you build my house and I don't like the brand of light switches you installed this protects you from me saying you did not perform the exact way I wanted you to and thus you breached and I should not pay you. The reason is because at the end of the day you substantially performed the job even though not everything was done to my liking.

For Perfect Tender, under the UCC for sale of goods, the job must be completed to my exact satisfaction. For example, if I sold you 100 hammers and 90 of the hammers were fine but 10 of them were the wrong color, as a buyer I have the option of either rejecting all the hammers, accepting all the hammers, or accepting some and rejecting the non-conforming hammers. HOWEVER, as a seller you have a Right to Cure the defect, which mitigates the harshness of the Perfect Tender Rule. The Right to Cure basically allows me to send you the right hammers as long as I give you notice that I will send the right hammers and that I cure it before the contract due date. If the due date has passed, you can still cure as long as the buyer originally rejected the non-conforming goods, the seller had reasonable grounds to believe you would accept the hammers that were a different color, and the seller cures within a reasonable time.

Hope this helps.

[NYC2014]

Both are used to evaluate whether or not delivery of a non-conforming service/product is a breach of the K.

Substantial Performance is used under the CL and Perfect Tender is for the UCC.

For Substantial Performance you are looking at the extent of the non-performance and whether the injured party that did not get exactly what they wanted out of the deal was deprived of the benefit they "reasonably expected" (as opposed to having everything exactly as expected). For example, if you build my house and I don't like the brand of light switches you installed this protects you from me saying you did not perform the exact way I wanted you to and thus you breached and I should not pay you. The reason is because at the end of the day you substantially performed the job even though not everything was done to my liking.

For Perfect Tender, under the UCC for sale of goods, the job must be completed to my exact satisfaction. For example, if I sold you 100 hammers and 90 of the hammers were fine but 10 of them were the wrong color, as a buyer I have the option of either rejecting all the hammers, accepting all the hammers, or accepting some and rejecting the non-conforming hammers. HOWEVER, as a seller you have a Right to Cure the defect, which mitigates the harshness of the Perfect Tender Rule. The Right to Cure basically allows me to send you the right hammers as long as I give you notice that I will send the right hammers and that I cure it before the contract due date. If the due date has passed, you can still cure as long as the buyer originally rejected the non-conforming goods, the seller had reasonable grounds to believe you would accept the hammers that were a different color, and the seller cures within a reasonable time.

Hope this helps.

Very helpful - thank you. Pretty much only needed the bolded part, but I appreciate it. Thanks again.