Breach at Common Law

Question 1

Breach in General

Answer 1

If a party is under an absolute duty to perform, and fails to perform, there is a breach.

The non-breaching party who sues for breach must show they are willing and able to perform but for the breaching party’s breach.

Question 2

Material or Minor Breach Determination

Answer 2

In determining whether a breach is material or minor, courts look at:

1) the amount of benefit received by the nonbreaching party
2) the adequacy of compensation for damages to the injured party
3) the extent of part performance by the breaching party
4) the hardship to the breaching party
5) negligent or willful behavior of the breaching party
6) The likelihood that the breaching party will perform the remainder of the contract

Question 3

Minor Breach

Answer 3

A breach is minor if the nonbreaching party gains the substantial benefit of the bargain despite the defective performance.

A minor breach does not relieve the nonbreaching party of their duty of performance. It merely gives them a right to damages for the minor breach.

Question 4

Material Breach

Answer 4

If the breach is material, the nonbreaching party (1) may treat the contract as at an end (counterperformance discharged) and (2) will have an immediate right to all remedies for breach of the entire contract, including total damages.

Question 5

Minor Breach Coupled with Anticipatory Repudiation

Answer 5

If a minor breach is coupled with an anticipatory repudiation, the nonbreaching party may treat it as a material breach - may sue for total damages and discharge duty of counterperformance

Question 6

Timeliness of Performance (common law)

Answer 6

Failure to perform by the time stated in a contract is generally not a material breach if performance is rendered within a reasonable time.

However, if the nature of the contract makes timely performance essential, or if the contract expressly provides that time is of the essence, failure to perform on time is usually a material breach.