Question

The Smiths decided to contract with Porches-R-Us to build a new front porch on their house.The Smiths asked them to use an ash railing; however Porches-R-Us used an oak railing. The Smiths may argue that they should have specific performance, in that they should receive the ash railing. Porches-R-Us may counter argue that they substantially performed because they look and function similarly.

1. Was there a material breach of this contract? Use the seven factors that you reviewed in your learning materials to guide your analysis. (5 pts)
   
2. When is specific performance available in the event of a breach of contract? (5 pts)
   
3. What is the purpose of the doctrine of substantial performance? Does it apply in the above scenario? (5 pts)
   
4. What if the builder changed the wood to oak rather than ash as it could no longer obtain ash would due to the outbreak of the Ash borer disease in trees? Does that change your analysis at all? (5 pts)

Answer 1

1. Was there a material breach of this contract? Yes there was material breach, because if the Smiths were expecting an oak railing and Porches-R-Us decided to use ash instead they should have put that in the contract. A material breach is when the performance of the person performing it fails to reach the degree of perfection of the other party is justified in expecting under the circumstances.

2. When is specific performance available in the event of a breach of contract? It is available whena money damage award will not adequately compensate a buyer whose seller has refused to perform, a court may order the seller to specifically perform the contract. For instance, in this scenario a court might order Porches-R-US to rebuild it with an oak railing.

3. What is the purpose of the doctrine of substantial performance? Does it apply in the above scenario?Yes it applies to the above scenario because a substantial performance is when performance falls short of complete performance in minor respects but does not deprive the promise of material part of the consideration that was bargained for.

3. What if the builder changed the wood to oak rather than ash as it could no longer obtain ash would due to the outbreak of the Ash borer disease in trees? Does that change your analysis at all? (5 pts) Yes, because if the builder changed the wood to oak, the smiths would not have an issue to begin with.

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