When you make a deal with someone, you often put it in writing, creating a contract. This contract is supposed to be a safety net, making sure everyone does what they agreed to. But, just like any plan, things can go wrong. Even with a written contract, those agreements can fall apart.
When problems pop up, people naturally turn to the contract itself, hoping to find a way to fix the situation. Now, imagine this: someone does the job they promised, but they do it poorly. Maybe they left things unfinished, or the work is just plain bad. In the legal world, this is what we call a ‘breach of contract.’ Essentially, they didn’t hold up their end of the deal.
If your contract is well-written, it should have solutions for these kinds of problems. Specifically, it should address what happens when someone does a job but does it in an incomplete or defective manner. This is sometimes referred to as “positive malperformance”. This article is designed to help you understand what options you have when a contract breaks down because someone did a bad job.
Think of it this way:
- You hire someone to build a fence. They put up the fence, but it’s wobbly and missing sections.
- You pay for a paint job, but the paint is peeling and uneven.
- You order a custom-made product, but it arrives with flaws.
In all these cases, the person did something, but it wasn’t what you agreed on. That’s where your contract comes in. It should outline what happens next. It may allow for things like getting the work redone, or even the ability to cancel the contract. We will look at those remedies that are available to you.
Positive malperformance occurs when a party subject to a contractual relationship performs, but such performance is defective or incomplete. This may be due to several reasons such as complete performance being impossible due to natural disasters or a change in the law. Where a party performs, but such performance is incomplete, the receiving party may raise breach or rescission.
In well drafted contracts such an instance as positive malperformance is accounted for. To do this, there should be a clause which allows for the cancellation of the contract where positive malperformance has occurred. This is known as a rescission clause. A rescission clause allows for the creditor to give the debtor notice of intention to rescind should the breach not be corrected within a specified period. However, it should be noted that despite the creditor having the right to rescind the contract, he/she may only do so once the relevant notice has been served upon the debtor and the specified period therein has expired. Should the debtor perform before the expiry of the set period, this may not allow for the creditor to cancel the contract.
Dealing with a contract that’s gone wrong due to incomplete or faulty work can be frustrating and confusing. If you’re facing a situation where you believe the other party hasn’t fulfilled their obligations, don’t navigate the complexities alone. Understanding your rights and the remedies available is crucial. For clear guidance and expert assistance in resolving your contract dispute, contact us today. Let us help you find the best path forward and ensure your interests are protected.
Saeedah Salie
saeedah@bbplaw.attorney
Associate
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