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Most living lawyers have run into Jacob & Youngs, Inc. v. Kent in their legal education. It has long been a staple in Contracts casebooks. While the result has been widely applauded, in recent years there has been some push-back. Professor Kenneth Ching has recently criticized both Cardozo’s argument and the result. Professor Robert Scott in a number of papers, some coauthored, has also concluded that the result was wrong. Yet given the state of New York law at the time Cardozo’s result was correct. Moreover, I will argue, the outcome is one that parties would adopt today. Ironically, despite the usual characterization of New York as being formalistic and having “hard” rules, its “soft” position on one question played a significant role.

The core facts are simple. Kent, a very wealthy lawyer, hired Jacob & Youngs to build a mansion. The contract price was about $77,000. The contract required that Kent make the final payment of $3,483.46 upon the architect providing a certificate acknowledging completion. The architect refused to award the certificate because the contract required that all the pipes be Reading Pipe, but a substantial amount of pipes installed were of other brands. The architect ordered that Jacob & Youngs replace the nonconforming pipe even though that would have required tearing down significant portions of the structure at a great cost. The contractor refused to do so, Kent refused to make the final payment, and Jacob & Youngs sued.


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