The Employer’s Obligations - Building Contract - page 158

to make living rooms uncomfortable, and if the putting right of those defects is not something
which can be done by some slight amendment of the system, then I think that the contract is
not substantially performed . . .
The actual amounts of expenditure which the judge assessed as being necessary to cure
those particular defects were £40 in each case. Taking those matters into account and the other
matters making up the total of £174, I have reached the conclusion that the judge was wrong
in saying that his contract had been substantially completed; and, on my view of the law, it
follows that the plaintiff was not entitled to recover under that contract.
I have reached that conclusion without taking into account an argument that was pressed
on us in this court by the defendant to the effect that it was a term of the contract that no
payment should become due until the work had been completed to such an extent and in such
a manner that he could properly sign a satisfaction note to be handed to an insurance company
which was guaranteeing payment of the contract price. That contention must necessarily
depend on the existence of some implied term to that effect, because there is nothing expressly
in the contract about it. If the defendant wanted to rely on such an implied term, I think it
was necessary for him to plead it, which he did not. It does not seem that any evidence was
directed at the hearing to any such implied term, and no reference to the matter is made in
the notice of appeal.
Other contracts
Questions of payment under other types of contract, such as 'measure and value' con-
tracts and 'cost plus percentage' contracts depend on the terms of the contract in ques-
tion and no general principle can be laid down.
The general rules relating to payment and related matters under building contracts were sum-
marised as in the following case.
Holland Hannen & Cubitts (Northern) Ltd. v. Welsh Health Technical
Services Organisation
QUEEN's BENCH DIVISION
(1981) 18 BLR 89
The facts of this case are not material for present purposes; it is further referred to on
p. 242.
JUDGE JOHN NEWEY QC: It seems to me that the law is clear and can be shortly stated as follows:
(1) An entire contract is one in which what is described as 'complete performance' by one
party is a condition precedent to the liability of the other party: Cutter v. Powell (1795), and
Munro v. Butt (1858).
(2) Whether a contract is an entire one is a matter of construction; it depends upon what
the parties agreed. A lump sum contract is not necessarily an entire contract. A contract pro-
viding for interim payments, for example, as work proceeds, but for retention money to be
held until completion is usually entire as to the retention moneys, but not necessarily the
interim payments: Denning LJ in Hoenig v. Isaacs (1952).