Critical analysis of contractor breach in business service contracts

Breach of Contract

A person contracts to build an expensive wooden play set in a customer's back yard. The contract states that the fasteners to be used in the making of the set should be of a certain length and tested strength. Because the play set comes as a kit, the builder believes that they have the correct fasteners, and the set is assembled. However, the customer, who is a general contractor without the time to do the work himself, has specific knowledge of the types of fasteners he required, and realizes that those installed on the play set did not meet what he believed he had contracted for. It did not matter that the bolts included in the play set packaging were of a certain alloy, the consumer believed that they had a greater chance of failure due to the amount of stress the fasteners would incur as the play set was used. However, the play set was had already been constructed, and it met the specifications set by the company that manufactured it. The customer did state that he required a certain number fastener, and it was written in the contract. The builder felt that he had fulfilled the contract because he believed he had used the correct fasteners. The builder did not check the code on the fasteners to make sure that they met the customer's specifications.

In this scenario, it can be said that the builder was only in minor breach of contract because he did use the fasteners sent by the company, and he believed that he was using the correct ones. He did not knowingly breach the contract, it was due to the fact that he neglected to properly inspect the product that was being used. The builder does not want to replace what is already in place because that would cost him extra money and time. He has other projects to complete that would make it difficult for him to go back and redo the work he has already done.

The builder could not be said to have done a complete performance because the different fasteners were required. He is in a minor breach which means that he had a substantial performance. In this case, the customer can either require the builder change out the fasteners, or at least reimburse him for using the wrong type. The builder was contracted based on providing the materials which included buying the specific type of fastener. Thus he can be required to reimburse or complete the job. The final level of breach of contract is inferior performance which would be a material breach. In this case, the "non-breaching party may: (1) rescind the contract and recover restitution, or (2) affirm the contract and recover damages" (Lemance, 2011). This is not the breach that occurred because the builder did use the fasteners that came with the kit, and the play set was put together in the time and manner that was prescribed.

The customer may want to make sure that he is making the right decisions, so he may want to seek legal counsel. If the builder says that he used the fasteners that were called for by the company making the kit and that should be good enough, and that he is not going to do any more work the customer may want to see what his options are. It would probably be a good idea for him to seek legal advice as soon as he sees the problem (Larson). He should be able to get the builder to complete the job correctly or at least pay him for the minor breach. But, a lawyer would know exactly what the customer can do.