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AMI 2428 Substantial Performance

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2428

Arkansas Model Jury Instructions-Civil

December 2023 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 24. Contracts

Performance or Breach

AMI 2428 Substantial Performance

The parties dispute whether [plaintiff/defendant] did what their contract required of [him][her][it]. A party may recover on a contract even if [he][she][it] did not do everything that the contract required of [him][her][it] if [his][her][its] performance was substantial.

[Plaintiff/Defendant] contends and has the burden of proving that [he][she][it] substantially performed [his][her][its] contract with [defendant/plaintiff]. Substantial performance cannot be determined by a mathematical rule. In determining whether performance was substantial, you should consider the following factors:

(1) The extent to which [plaintiff/defendant] will be deprived of the benefit that [he][she] reasonably expected;

(2) The extent to which [plaintiff/defendant] can be adequately compensated for the benefit of which [he][she] will be deprived;

(3) The extent to which [plaintiff/defendant] will suffer forfeiture;

(4) The likelihood that [plaintiff/defendant] will cure [his][her][its] failure, taking into account all circumstances, including any reasonable assurance that the failure will be cured; and

(5) The extent to which the behavior of [plaintiff/defendant] is consistent with standards of good faith and fair dealing.

COMMENT

This instruction is based on Roberts Contracting Co. v. Valentine-Wooten Road Public Facility Board, 2009 Ark. App. 437, at 8, 320 S.W.3d 1, 7–8 (citing Cox v. Bishop, 28 Ark. App. 210, 213, 772 S.W.2d 358, 359–60 (1989)). The five factors set out in the instruction are taken from the Restatement (Second) of Contracts and were first cited with approval in Prudential Insurance Co. of America v. Stratton, 14 Ark. App. 145, 151–52, 685 S.W.2d 818, 822 (1985) (citing Restatement (Second) of Contracts §§ 237 cmt. d, 241 (1981)). In Roberts & Co. v. Sergio, the court further explained that “[s]ubstantial performance cannot be determined by a mathematical rule relating to the percentage of the cost of completion, and the issue of substantial performance is a question of fact.” 22 Ark. App. 58, 60, 733 S.W.2d 420, 421 (1987) (internal citations omitted).

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