Why does UCITA adopt the substantial performance standard?
Licenses traditionally have been governed by the common law, which uses this standard. Also, the standard has been adopted in international law and even applies in Article 2 where more than a single delivery is contemplated. It applies in all services contracts. Many UCITA transactions are currently governed by it. Article 2 and 2A stand essentially alone in modern law in requiring so-called ‘perfect tender,’ in reference to a single fact situation only: a single delivery of goods. The substantial performance standard is, in short, the generally applicable rule because it is generally the best rule. The rule also reflects that the complexity of software products makes them inherently imperfect. In fact, the idea of perfect software is a goal or aspiration not presently attainable, at least not without exorbitant costs that would drive many thousands of small companies out of the business. That last point is critical. By far, most software companies are small companies who simply cannot
