Temporary Disconformity

When does defective work become an actionable breach of contract?

Following the dissenting speech of Lord Diplock in P & M Kaye v Hosier and Dickinson (1972) it may be argued that a contractor who produces defective work during the course of the contract is not in breach of contract until he hands over the defective work because, until then, it is open to him to rectify his works. This is concept of temporary disconformity.

In a recent dispute, the contractor stopped work due to lack of payment. Entitlement to payment was disputed based on the simple fact that the sums demanded exceeded the estimates given. The court found in the contractor’s favour.

On investigation it was found that the work was defective. The employer then argued that the sums demanded should be reduced to reflect the cost of remedying the defects. The contractor responded that the work was defective because it had been stopped in a temporary state and that, had work continued, the 'temporary disconformities' would have been put right as a matter of course.