Defective performance is also an acceptance, unless accompanied by an explanation.

That is to say, any defective performance, between new or refilled cartridges may be the same since they use the same originally manufactured cartridge.

In Thompson v Scholtz, the court could not apply the test in BK Tooling because the defective performance could not be repaired.

Lord Denning MR held that Mr Jackson could recover damages of £600 for defective performance and £500 for disappointment or 'mental distress' for himself and his family.

Where the innocent party receives and starts using part-performance or defective performance, the contract cannot then be cancelled, as an election to keep the contract alive has been made, but the innocent party may raise the exceptio.

A cause of action for breach on the part of the obligor lies with the assignee, who will hold the exclusive right to commence a cause of action for any failure to perform or defective performance.

Where specific goods are identified, or unascertained goods are appropriated by the seller to the contract, and the goods suffer from a patent defect, the seller may be sued for breach of contract by defective performance.

In one sense, the characterisation of the transaction as being either sale or exchange may be important because the remedy for defective performance in exchange is not for the price, but rather a claim for unliquidated damages for non delivery.

The exceptio non adimpleti contractus is available in all types of contract, but not where a breach is excused by law, or where the risk of defective performance lies with the party who wishes to raise the exceptio.

An in-depth analysis of the deficit in localizing body parts and parts of objects or animals revealed a clear-cut dissociation between defective performances in body representation tests and normal performances on tests involving other types of stimuli.

The point of such clauses is to put the buyer in the position where his remedies for failure to perform or defective performance under the contract are limited in fact to compelling either proper performance under the contract (by way of rework repair or replacement) or the return of his money.