Non-performance
Non-performance involves failure to deliver goods or services as agreed. Mediation can help resolve disputes about incomplete or inadequate performance.
About Non-performance
Non-performance occurs when a party fails to deliver goods or services as agreed in a contract. This may involve late delivery, incomplete work, or failure to meet quality standards. Such failures can disrupt business operations and cause financial loss for the other party. Non-performance involves failure to fulfil contractual obligations to deliver goods or services.
Common non-performance scenarios include complete failure to perform where one party does not deliver at all, late performance where delivery is delayed beyond agreed deadlines, partial performance where only some obligations are fulfilled, and defective performance where goods or services do not meet contractual standards. Contracts typically provide remedies for non-performance including damages, specific performance, or termination.
Mediation offers a constructive way to address non-performance disputes. A neutral mediator helps parties discuss the performance issues and agree on remedies. This approach can resolve disputes efficiently while preserving business relationships and avoiding the costs of litigation.
What is it?
Non-performance involves failure to fulfil contractual obligations to deliver goods or services. This may include complete failure to perform, late performance, or performance that does not meet contractual standards. Contracts typically provide remedies for non-performance. The difference between non-performance and breach of contract is that non-performance specifically refers to failure to deliver goods or services.
Types of non-performance include major breach where the failure is substantial and goes to the essence of the contract, minor breach where the failure is less significant, anticipated breach where one party indicates they will not perform, and partial breach where only some obligations are not fulfilled. Remedies may include damages, court-ordered performance, or contract termination.
Your rights and options
Your rights are set out in the contract and commercial law. These include the right to receive goods or services as agreed, the right to timely delivery, the right to quality that meets contractual standards, and the right to remedies for breach of contract. Contract law provides remedies for non-performance.
Options include negotiation, mediation, or legal proceedings for breach of contract. You may be entitled to damages for losses caused by non-performance, specific performance where the court orders the other party to perform, or termination of the contract. Mediation can be particularly valuable for non-performance disputes because it allows parties to reach creative remedies such as revised delivery schedules, partial refunds, or performance modifications.
Document the contract terms, delivery records, and evidence of non-performance. Calculate the financial losses caused by the failure to perform. Assess whether remedies such as damages, specific performance, or contract termination are appropriate. Consider whether force majeure or impossibility may excuse performance. The Olive Branch can help resolve non-performance disputes through mediation, allowing parties to reach creative remedies such as revised delivery schedules or performance modifications.
Frequently Asked Questions
What constitutes non-performance?
Non-performance involves failure to fulfil contractual obligations to deliver goods or services as agreed. This may include complete failure to perform where one party does not deliver at all, late performance where delivery is delayed beyond agreed deadlines, partial performance where only some obligations are fulfilled, or defective performance where goods or services do not meet contractual standards. The difference between non-performance and breach of contract is that non-performance specifically refers to failure to deliver goods or services while breach of contract is a broader category.
What remedies exist for non-performance?
Remedies for non-performance may include damages to compensate for losses caused by the failure to perform, specific performance where a court orders the breaching party to fulfil their contractual obligations, termination of the contract allowing the non-breaching party to end the agreement and seek alternative arrangements, or price reduction where the price is reduced to reflect the diminished value of the performance received. The availability of remedies depends on the nature of the non-performance, the contract terms, and applicable law.
How is non-performance proven?
Proving non-performance typically requires demonstrating that a valid contract existed, that the plaintiff performed their obligations under the contract, that the defendant failed to perform their obligations, and that the plaintiff suffered damages as a result. Evidence may include the contract itself, correspondence about performance issues, delivery records showing failure to deliver or late delivery, inspection reports showing defective goods or services, and documentation of financial losses caused by the non-performance.
Can contracts be modified for non-performance?
Contracts can be modified for non-performance through mutual agreement of the parties. When non-performance occurs, parties may negotiate revised delivery schedules, modified performance specifications, partial refunds, or other accommodations to address the situation. Mediation can be particularly valuable for reaching mutually acceptable modifications that preserve the business relationship while addressing the performance issues. Courts may also modify contracts in limited circumstances such as when performance becomes impossible or impracticable due to unforeseen events.
Our Mediation Process
The Initial Consultation
We meet with you to understand your situation, what matters to you, and what justice looks like for you. You tell us your story in your own words, and we explain how mediation could help you achieve it.
Preparation and Contextual Review
We prepare thoroughly so you don't have to. We review the relevant information privately, ensuring we understand the full context before bringing everyone together. You'll know what to expect and can prepare for the conversation ahead.
Setting the Environment
We create a confidential space where you can speak freely and be heard on equal terms. You'll have the opportunity to speak directly to those who need to hear your experience, and we ensure everyone is treated with dignity and respect.
The Facilitated Negotiation
We facilitate a dialogue where you can seek accountability and ask for the change you need to see. You remain in control of the outcome while we help craft solutions that fit your specific circumstances rather than applying a standard approach.
Finalising the Resolution
We conclude with a clear agreement that reflects what matters to you. The resolution is shaped by your needs and gives you a practical path forward, with the understanding that the experience of being heard is as important as the outcome itself.
The Initial Consultation
Your journey begins with a confidential discovery call. You will speak directly with our lead mediator—not an automated system or an intake assistant. During this initial conversation, we will map out the high-level dynamics of your dispute, assess whether mediation is the most strategic path forward for your situation, and answer any immediate procedural questions you may have.
Preparation and Contextual Review
We prepare thoroughly so you don't have to. We review the relevant information privately, ensuring we understand the full context before bringing everyone together. You'll know what to expect and can prepare for the conversation ahead.
Setting the Environment
We create a confidential space where you can speak freely and be heard on equal terms. You'll have the opportunity to speak directly to those who need to hear your experience, and we ensure everyone is treated with dignity and respect.
The Facilitated Negotiation
We facilitate a dialogue where you can seek accountability and ask for the change you need to see. You remain in control of the outcome while we help craft solutions that fit your specific circumstances rather than applying a standard approach.
Finalising the Resolution
We conclude with a clear agreement that reflects what matters to you. The resolution is shaped by your needs and gives you a practical path forward, with the understanding that the experience of being heard is as important as the outcome itself.
Related Specialism
Boardroom and Founder DisputesSources
International Sources
- International Chamber of Commerce contract rules (Guidelines)
- UNIDROIT Principles of International Commercial Contracts (Principles)
- International Organization for Standardization quality standards (Standards)
- World Bank contract enforcement indicators (Indicators)
- International Bar Association contract law standards (Standards)
Continue your search for resolution
Every dispute is personal and complex. We are here to provide the neutral space and expert guidance you need to find a lasting resolution.
Talk to Our Team