Breach Flashcards
Anticipatory repudiation
Anticipatory repudiation requires that the promisor unequivocally indicates that he cannot or will not perform when the time comes, or act in a manner rendering him unable to perform. When this happens, the non-repudiating party may:
1. treat it as a total breach and sue immediately,
2. suspend his own performance and wait to sue until the performance date,
3. treat the repudiation as an offer to rescind and treat the contract as discharged, or
4. ignore the repudiation and urge the promisee to perform.
A repudiating party may at any time before his performance is due withdraw his repudiation. However, a repudiating party may not withdraw his repudiation if the other party has
1. canceled the contract,
2. materially changed his position in reliance on the repudiation, or
3. otherwise indicated that he considers the repudiation final.
Failure to perform
Unless the nature of the contract is such as to make performance on the exact day agreed upon of vital importance, or the contract by its terms provides that time is of the essence, failure by a promisor to perform at the state times will not be material. Merely providing a date for performance does not make time of the essence. Late performance in a common law contract for services is treated as a minor breach that gives the nonbreaching party a right to damages but doe snot relieve him of his duty to perform.
Breach - general rules
When a promisor is under an absolute duty to perform, and this duty has not been discharged, the failure to perform in accordance with the contract will constitute a breach of the contract. A minor breach (where the obligee gains the substantial benefit of her bargain despite the breach) affords a remedy to the aggrieved party but does not relieve him of his duty of performance under the contract. If the breach is material, the nonbreaching party may treat the contract as at an end (i.e., any duty of counterperformance owed by him is discharged) and will have an immediate right to all remedies for breach of the entire contract.
Time is of the essence clause
Generally, failure of a promisor to render timely performance, although a breach, will not be material. however, where the contract by its terms, in conjunction with the surrounding circumstances, establishes that time is of the essence, failure of timely performance will be a material breach.
