N.J. Model Civil Jury Charge 4.30C

4.30C BUILDER FAILS TO PROVE SUBSTANTIAL

PERFORMANCE AND SUES IN QUASI-CONTRACT

(Approved 5/98)

Even if the builder in a constructi on contract fails to prove substantial

performance, (even if his/her default unde r the contract is willful) he/she may

recover compensation if the benefit which he/she conf erred upon the owner

exceeds the harm which he/she caused the owner, provided the owner accepted or

retained the benefit of the partial performance. In such case the builder is entitled

to recover the reasonable value of th e work performed by the builder after

deducting from it the loss caused by the builder’s breach which can include

increases in the cost of completion, losses resulting from delays, or harm caused by

below-par performance. However, the reasonable value may not be greater than

the proportion of the contract price wh ich the reasonable value of the work

completed bears to the reasonable value of all the work contemplated by the

contract.

Cases:

Kutzin v. Pirnie, 124 N.J. 500 (1991); Power-Matics, Inc. v. Ligotti,

79 N.J. Super. 294 (App. Div. 1963); and Restatement (Second) of

Contracts, Sec. 374 (1981).