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Am Jur 2d - Contracts § 598

VI. Performance or Breach, C. Sufficiency of Performance, 1. In General, § 598 - Sufficiency of performance generally; what constitutes adequate or full performance

Although substantial performance of a contract, subject to a right of recoupment with respect to variations between the actual and stipulated performance,[1] is the general test for determining the adequacy of performance of a contract, and literal compliance is not required, except with regard to express conditions,[2] it is clear that a person cannot be compelled to take and use one thing when he or she bargained for another and declines to receive the substitute tendered.[3] Therefore, what constitutes full performance generally depends upon the construction of the contract in light of the surrounding circumstances.[4] For instance, a finding that the work performed had been generally successful in satisfying contract requirements may be sufficient.[5] Similarly, evidence that a software developer was to deliver a beta version of the program to the publisher supported the conclusion that he had fully performed, even though the program contained a bug.[6] Strict or full performance may, of course, be waived.[7]

An express condition of a contract must be literally performed in order for the relevant obligation to arise, while a plaintiff's performance of other contractual promises must be merely substantial before it can recover for a defendant's breach[8]

If the contract clearly requires a specified performance, the fact that the obligor has done more in performing the first part of the contract than the letter of the obligation requires should not be used to compel similar performance of the remainder in excess of the contract requirements.[9]

An issue of fact whether a party breached a contract by the manner of performance is to be determined by a jury.[10]

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1   § 603 .

2  §§ 591 to 593 .

3   Hartmann-Schneider Co v. Farish Co, 7 F.2d 561 (C.C.A. 3d Cir. 1925) .

4   Beneke v. Palazzi, 256 A.D. 946, 10 N.Y.S.2d 163 (2d Dep't 1939) ; Sherba v. Midstate Precast Systems, Inc., 230 A.D.2d 944, 646 N.Y.S.2d 219 (3d Dep't 1996) (where the unambiguous terms of the agreement provided that volumes of transcript would be delivered by a court reporter as they were completed and that payment will be due when the last volume is delivered, the reporter's subsequent offer to deliver the last two volumes only after receiving payment was not in accordance with the terms of the contract); West Development Group, Ltd. v. Horizon Financial, F.A., 405 Pa. Super. 190, 592 A.2d 72 (1991) .
 Although a contract called for the contractor to crush rock to meet certain specifications for road-base material and asphalt aggregate, the evidence showed that both contracting parties knew that the contractor's equipment was insufficient to produce the completed product and that the real intention of the parties was simply for the contractor to receive and crush rock as directed by the owner for the owner's further processing, and the contractor performed its part of the contract. Robson v. United Pac. Ins. Co., 391 S.W.2d 855 (Mo. 1965) .
 The fact that a merchant placed horses on consignment with instructions to sell them for a certain amount did not satisfy the contractual obligation to endeavor to sell them as soon as possible at a profit. Bibeau v. Ward, 228 A.D.2d 943, 645 N.Y.S.2d 107 (3d Dep't 1996) .

5   Northeast Drilling, Inc. v. Inner Space Services, Inc., 243 F.3d 25, 49 Fed. R. Serv. 3d 638 (1st Cir. 2001) .

6   Graham v. James, 144 F.3d 229 (2d Cir. 1998) .

7  §§ 623 to 627 .

8   Ace Securities Corp. Home Equity Loan Trust, Series 2007-HE3 ex rel. HSBC Bank USA, Nat. Ass'n v. DB Structured Products, Inc., 5 F. Supp. 3d 543 (S.D. N.Y. 2014) (applying New York law) .

9   Liebeskind v. Mexican Light & Power Co., 116 F.2d 971 (C.C.A. 2d Cir. 1941) ; County of Morris v. Fauver, 153 N.J. 80, 707 A.2d 958 (1998) .

10   Ace Chemical Corp. v. DSI Transports, Inc., 115 N.C. App. 237, 446 S.E.2d 100 (1994) (a directed verdict was improper, where there was a dispute as to whether a carrier breached a contract to transport chemicals in a stainless steel tank, and this caused the product to be contaminated).

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