This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Apart from the cases in which the variance between strict and literal performance and actual performance is so slight that the maxim "de minimis non curat lex" applies, substantial performance does not exist unless the party who alleges such performance has made a genuine and bona-fide attempt to perform strictly.1 A deliberate and material departure from the terms of the contract prevents substantial performance, even though the work done may be as good or as valuable to the promisee as the work agreed to be done.2 A contract to construct sewers, using certain material, is not performed substantially where material different from that specified, although as good for practical use, is employed.3 The act of printers in adding their imprint for advertising purposes to covers for catalogues which they are printing for a customer, without obtaining his permission to add such imprint, and after he has approved the proof of such covers, is a willful breach which prevents the application of the doctrine of substantial performance.4 The intentional act of the contractor in substituting earthen sewer pipe for iron sewer pipe of a larger diameter which was required by the contract, prevents his performance from being substantial performance.5 If the contractor intentionally abandons performance before he has performed the contract completely, there is no substantial performance of the contract.6 If all the work provided for in the contract is done, but it is intentionally so done as not to comply with the terms of the contract in material matters, there is no substantial performance;7 especially if the contractor has failed to perform the contract in this respect intentionally and with the intention of defrauding the adversary party.8
4 Nance v. Patterson Building Co., 140 Ky. 564, 140 Am. St. Rep. 398, 131 S. W. 484.
It is said to be "a term which Is not easily defined." Vineennes Bridge Co. v. Walker, 181 Ky. 651, 205 S. W. 778.
"The definition of 'substantial performance' is difficult to give in general terms. It is usually a question to be determined in each case with reference to the existing facts and circumstances." Connell v. Higgins, 170 Cal. 541, 150 Pac. 760 [quoted in Smith v. Mathews Const. Co., - Cal. - , 179 Pac 205].
1 Iowa. Littell v. Webster County, 152 Ia. 206, 131 N. W. 691, 132 N. W. 426.
Kansas. Denton v. Atchison, 34 Kan. 438, 8 Pac. 750.
Massachusetts. Veazie v. Hosmer, 77 Mass. (11 Gray) 396; Casavant v. Sherman, 213 Mass. 23, 99 N. E. 475; Hennessy v. Preston, 219 Mass. 61, 106 N. E. 570; Mark v. Stuart-Howland Co., 226 Mass. 35, 115 N. E. 42.
Minnesota. Elliott v. Caldwell, 43 Minn. 357, 9 L. R. A. 52, 45 N. W. 845.
New York. Crane v. Knubel, 61 N. Y. 645.
North Dakota. Torgerson v. Hauge, 34 N. D. 646, 3 A. L. R. 164, 159 N. W. 6.
Pennsylvania. Wade v. Haycock, 25 Pa. St. 382; Harris v. Sharpless, 202 Pa. St. 243, 58 L. R. A. 214, 51 Atl. 965.
It has, however, been said that "it is not true . . . that any conscious deviation from the absolute terms of the agreement causes a failure of performance." 9 It has been said that if the performance is so nearly as strict a literal performance that the maxim "de minimis non curat lex" applies, the good faith of the contractor is immaterial and that recovery can be had in such cases on the theory of substantial performance.10 Prom the other analogies of the law, this is probably true, although the cases in which the failure to perform the contract is willful are from their nature usually cases in which there is a material variance between the contract and the performance.
2 Schultze v. Goodstein, 180 N. Y. 248, 73 N. E. 21; Schmidt v. North Yakima, 12 Wash. 121, 40 Pac. 700; Foeller v. Heintz, 137 Wis. 169, 24 L. R. A. (N.8.) 327, 118 N. W. 643.
3 Schmidt v. North Yakima, 12 Wash. 121, 40 Pac. 700.
4 Harris v. Sharpless, 202 Pa. St. 243, 68 L. R. A. 214, 61 Atl. 965.
5 Schultz v. Goodstein, 180 N. Y. 248, 73 N. E. 21.
Contra, that in a similar case he must be charged with the whole coat of a new pipe in accordance with the contract, and not with the difference between the cost of the two kinds of pipe. Morgan v. Gamble, 230 Pa. St. 166, 70 Atl. 410.
6 Crane v. Knuble, 61 N. Y. 646; Wade v. Haycock, 25 Pa. St. 382.
7 Elliott v. Caldwell, 43 Minn. 357, 9 L. R. A. 52, 45 N. W. 845; Wade v. Haycock, 26 Pa. St. 382.
8 Elliott v. Caldwell, 43 Minn. 357, 9 L. R. A. 52, 45 N. W. 845.
9 Smith v. Mathews Const. Co., - Cal. - , 170 Pac. 205.
10 Van Clief v. Van Vechten, 130 N Y. 571, 29 N. E. 1017 (obiter).
If it is true that good faith is not necessary where there is a very slight and immaterial variance between the actual performance and the performance required by the terms of the contract, it follows that the good faith of the party who attempts performance is operative only where the actual performance is, on the one hand, so close to the performance required by the contract that it can fairly be said to be substantial as far as the character of the performance is concerned;11 and where, on the other hand, it is not so close to the performance required by the contract that the maxim "de minimis non curat lex" applies. If the actual performance is so different from the performance required by the terms of the contract that it can not be said to be substantial performance as far as the character of the work itself is concerned, the good faith of the party who attempts performance can not supplement such failure of performance,12 although if he is seeking to recover on the theory of quasi-contract and not upon the contract itself, his good faith may be material in some jurisdictions.13