ABSTRACT
Partial performance As discussed in Chapter 17, a party who only partially performs a contract will not usually be entitled to the contract price. However, if the other party accepts the partial performance, having had an option to reject it, an obligation to pay for the reasonable value of the work done arises on the basis of unjust enrichment.130 The requirement of an opportunity to reject partial performance was clearly explained in Sumpter v Hedges,131 where the plaintiff agreed to build two houses and stables for the defendant for a fixed price of £565. He did part of the work to the value of £333 and then abandoned the contract. The defendant completed the buildings himself. The plaintiff was not entitled to recover anything for the work done. Collins LJ said that the defendant had had no option but to accept the building work. The mere taking of the benefit did not raise the inference that the defendant accepted partial performance. He was not bound to keep the building unfinished as in an incomplete state it would be a nuisance to his land. Similarly, in a more recent case, it was said that a defendant ‘is not treated by the law as having chosen to accept that which is forced down his throat despite his objections’.132
