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James decided that he wanted to build a pool in his yard so that his kids would stop asking to go to his brother’s house all of the time to get in their pool. On February 1 James contracts with the Super Pool Company. The relevant terms of the contract are that Super Pool will complete the pool by June 1, 2019. The parties sign the contract. The price for building the pool is 20 thousand dollars. But, on April 1, 2019, Super Pool notifies James that it cannot complete the pool by June 1 because it has taken on too many projects to complete. Of course, James is mad and wants his pool completed by June 1, 2019. James calls around and finds another pool company that can complete the pool by June 1, 2019, but the price that the company will charge is 35 thousand dollars.

James has come to your law firm and wants to know what he can do in this situation, if anything, to get his pool completed by June 1 for 20 thousand dollars.

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  • What does the contract say about non-performance? Delay penalties?
    – user4210
    Apr 6, 2019 at 23:10
  • Can James establish measurable damage arising from the delay in performance, or is he just angry? Is there a Time Is Of The Essence clause in the contract? Is the proposed delay unreasonable (e.g. framed in terms of years, or just days)? Was the delay foreseeable by the contractor? Given the likely answers to those questions, Jame will probably have to suck it up. Did James pass up a competitive offer from Crappo Pools with a similar date and price?
    – user6726
    Apr 7, 2019 at 0:40
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    I'm voting to close this question as off-topic because it reads like a textbook homework question, and answering such questions should be discouraged.
    – Michael Seifert
    Apr 7, 2019 at 15:57
  • I don't think this is a homework question -- the desired remedy is too implausible. And in any case this is a kind of issue many people actually encounter so it will be useful to others. I urge others not to vote to close this, and if it is closed, i will vote to repopen.
    – David Siegel
    Apr 7, 2019 at 16:32
  • @MichaelSeifert it is formatted as a homework question, but the lack of important details shows us that it's not. No law textbook would do something as careless as to not include a jurisdiction within the question, for without a jurisdiction any answer given to a question like this would be incorrect.
    – User37849012643
    Apr 8, 2019 at 8:11

1 Answer 1

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Right now, Super Pool Company anticipate that they will be in breach of their contract, however, they are not in breach yet.

Breaching a contract with respect to a delivery time would allow James to claim damages such as the time, effort and expense of continuing to go to his brothers house. While difficult, these things can be quantified, however, they are unlikely to amount to very much. It’s far simpler if the contract contains a liquidated damages clause where the damages per day or per week have been pre-agreed - they are quite common in construction contracts.

Unless the contract specifically states that “time is of the essence” then the failure by Super Pool Company to complete on time does not give James the right to terminate the contract. If James were to do so it would be a repudiation and Super Pool Company could sue James for $20,000 - the contract price.

If the delay became unreasonable (say 2 or more times the contract period) then this would allow James to terminate the contract and sue for damages - this would include any additional cost incurred by having the work done by others.

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