Explain the law relevant to this situation, and advise Jean as to what legal remedies

are available to her.

The parties had a valid contract, Build-Quick performed in terms of the contract, and
Jean also performed by paying the contract price. However, Build-Quick’s
construction work was defective in that the roof was not properly waterproofed and
secure, resulting in leaks and further damage to the building and its contents. This
amounts to defective performance, or positive malperformance.
(2)

Positive malperformance takes place where a party to the contract renders defective
performance i.e. does not perform in the manner contemplated by the contract. Not
every malperformance by a contractant is a breach, however; it may be that there is
a duty on the creditor to allow the debtor to remedy defective performance. In the
nature of things, positive malperformance is normally committed only by the debtor.
(2)

Positive malperformance may take one of two forms, depending on whether the
debtor’s duty to perform is positive or negative. In the case of a positive duty to
perform, the debtor must perform in terms of the contract, and if he does perform in
terms of the contract, but the performance is defective, the debtor is guilty of positive
malperformance (which is the case in this scenario).

In the case of a negative duty to perform, the debtor must refrain from doing
something, or refrain from acting in a specific manner. A typical example would be
where a person acts contrary to an agreement in restraint of trade.
(2)

Remedies: Cancellation and damages or specific performance and damages as well

as other remedies contractually agreed upon. An injured party is only entitled to
cancel a contract on the ground of positive malperformance if the malperformance is
substantial. Malperformance is usually substantial or material where the injured
party receives something which is totally different from that which was contemplated
at the time of the conclusion of the contract.

In this instance it is not sufficiently substantial, so Jean will not be able to cancel
(also because the substantial building work had been completed, and so restitution
would not be possible). Jean would thus be entitled to demand that Build-Quick
remedy the defect by repairing the roof, walls and ceiling, and by paying for the costs
of repairs to the lounge suite and music centre. Should they fail or refuse to do so,
Jean would be entitled to get another building contractor to do the repair work to the
house, and to sue Build-Quick for the cost of these repairs.
(4)

(10)