PERFORMANCE

performance,n.1. The successful completion of a contractual duty, usu. resulting in the performer’s release from any past or future liability; EXECUTION(2). — Also termed full performance. Cf. NONPERFORMANCE; MISPERFORMANCE. [Cases: Contracts  275. C.J.S. Contracts § 502.]

defective performance. A performance that, whether partial or complete, does not fully comply with the contract. • One example is late performance. [Cases: Contracts  280(1), 302. C.J.S. Contracts §§ 561, 592.]

future performance. Performance in the future of an obligation that will become due under a contract.

misperformance. See MISPERFORMANCE.

nonperformance. See NONPERFORMANCE.

part performance. 1. The accomplishment of some but not all of one’s contractual obligations. [Cases: Contracts  319. C.J.S. Contracts § 593.] 2. A party’s execution, in reliance on an opposing party’s oral promise, of enough of an oral contract’s requirements that a court may hold the statute of frauds not to apply. [Cases: Frauds, Statute of  129.] 3.PART-PERFORMANCE DOCTRINE.

specific performance. See SPECIFIC PERFORMANCE.

substantial performance.Performance of the primary, necessary terms of an agreement. See SUBSTANTIAL-PERFORMANCE DOCTRINE. [Cases: Contracts  293. C.J.S. Contracts § 589.]

vicarious performance. Performance carried by an employee, agent, or other nominee.

“It is necessary … to distinguish between assignment of a contractual liability and vicarious performance of a contract. Normally a person who contracts to do something must do it himself. But in the case of a duty of performance which involves no personal element, so that it does not matter to the other party who does the promised act, so long as it is done in accordance with the contract, the party liable may do it by a servant or agent or other nominee. This is not an assignment of the contractual liability, for the original contractor remains liable and if the deputy has done the work badly it is not the deputy but the contractor himself who is answerable to the other party.” 2 Stephen’s Commentaries on the Laws of England 76–77 (L. Crispin Warmington ed., 21st ed. 1950).

2. The equitable doctrine by which acts consistent with an intention to fulfill an obligation are construed to be in fulfillment of that obligation, even if the party was silent on the point. 3. A company’s earnings. 4. The ability of a corporation to maintain or increase earnings.

[Blacks Law 8th]