ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, April 9, 2012

Professor DeAngelis on Substantial Performance

We have already posted links to Professor Mark DeAngelis's "Law Lessongs" on Raffles v. Wichelhaus and the UCC's Battle of the Forms (2-207).  

Today we have raided his YouTube site for this number on Substantial Performance.  Here is his explanation of the song:

MdeangelisThis is a "Law Lessong" - a law lesson in a song - that I wrote to help students consider the issues regarding substantial performance of a service contract. This song follows a hypothetical where a contractor builds a new dormitory at a college. At some point, the job is "done." But is a construction job ever really "done?" There are always punch list items to be completed. The song and example hopefully allow you to explore what level of performance is acceptable and what constitutes a breach. (In the heating work, the breach is material; in the case of the malfunctioning locks, the breach is likely minor depending on how many locks are involved.) Also, there is the opportunity to distinguish between substantial performance under the contract and the performance of substantial work under the contract.

The melody is based on "The Ship That Never Returned" written by Henry Clay Work in 1865. (This melody may also be recognizable as the tune that the Lettermen used in their 1959 hit song, "Charlie on the MTA"):

The Substantial Performance Song
Words by Mark DeAngelis
Tune: Ship That Never Returned (Work, H.C.)

Did he substantially perform?
Can the college use the dorm,
To keep the students safe and warm?
Look at substance over form,
Minor or material harm?
To determine if he substantially performed.

A builder's bid was won
A job was to be done
To build a brand new college dorm
Excavators dug the land
Subcontractors followed plans 
And soon substantial work they all performed
"We're done!" the builder said,
"Let's put this job to bed"
And the college inspectors came to see.
Though the structure did impress, 
There were problems to address,
Before the college paid the final fee. Refrain


The inspectors checked the halls,
The plumbing, lights and walls,
And mostly they were satisfied and glad.
But when they checked the rooms for heat,
The work and standards did not meet, 
The heating and the boiler work were bad.

Besides the heating ills
Leaving students with the chills,
A problem with security was found.
The college was appalled 
When the locks that were installed, 
In the students' rooms were junk and broken down. Refrain x2


Music, Teaching | Permalink

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