Is my situation considered a material breach of contract?

1 week ago

My concrete contractor did a stamped patio for me but his crew botched the job. There were huge imperfections in the job and I made these known the day after they were done. The contract I signed states that i pay 50% at the start of the job and the other 50% after the job is completed. I have paid the first half but not the second. The contract also stated that all defects related to workmanship would be corrected in 5 days. It was a week before they did the first repair attempt and over another week after the second repair attempt. They seem to make the concrete look worse each time they try a fix. Would this be considered a material breach of contract? Also I do not want to pay the other half at the moment since they have made the patio look even worse and in my eyes this job is still not complete, should i hold out the second payment till they fix it?

Senior Legal Associate Levelset

It’s hard to say whether or not a specific event will or won’t cause a material breach of contract since, ultimately, that’d be up to the court (if things came down to that). And, there’s always the potential that other contractual provisions might also come into play – so it’d be hard to make any determination without a more thorough review of the contract documentation and circumstances. After all, what may be a material breach in one situation may be a minor breach in another.

With that being said, a failure to remedy defects would seemingly be a breach of the contract – though not necessarily a material one if the attempts to repair were merely 2 days late. And, the failure to satisfactorily repair defective work would also seemingly constitute a breach of the contract, to some degree. Further, if work has not been satisfactorily completed as set out by the contract, and if payment isn’t required, under the contract, until work is complete – seemingly, payment wouldn’t yet be due.

Of course, any time payment is withheld for a long period of time – regardless of whether it’s warranted – the potential for an ugly payment dispute grows stronger. So, even if a party is entitled to withhold payment or even cancel the contract due to breach, it’s a good idea to first discuss the issue with a contractor. If there’s clarity and transparency about why payment is being withheld, and if clear steps are given to obtain payment, then that might go a long way toward diffusing the dispute and making sure that the work gets corrected and that everyone gets paid.

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