Material Breach

Question 1

Breach def:

Answer 1

any non-performance of a contractual duty at a time when performance of that duty is due
alt def: an unjustified or unexcused failure to perform all or part of what is promised in a K.
Any deviation from what you promised to do is a breach. However, not all breaches alleviate duty to perform

Question 2

Condition def:

Answer 2

act or event whih must occur or must not occur, unless that condition is excused, whih must be performed before performance under a K is due or for which discharges a duty of immediate performance

Question 3

Express Condition def:

Answer 3

unambiguous; makes clear that a failure to do the thing will relieve the other party of his/her obligation.
puts reader on notice that under no uncertain terms that if there is non-performance, will not honor K

Question 4

Implied Condition def:

Answer 4

(every K has implied condition that each party’s obligation to perform is impliedly conditioned upon there being no uncured material breaches by the other party
uncured - has not been remedied
material = substantial

Question 5

uncured material breach

Answer 5

a breach (unjustified or unexcused failure to perform all or part of what is promised in a K
that is material/substantial to the contract (goes to the pricipal purpose/kearth of the consideration) and
has not been remedied

Question 6

Breach

Answer 6

unjustified or unexcused failure to perform all or any part of what is promised in a K

Question 7

Promise

Answer 7

every bi-lateral K contains promises
If you fall short, you have breached, but not all failures will alleviate the other party from its obligation to perform.
if a breach becomes Material, will that suspend the obligation to perform

Question 8

Steps to Determine Breach

Answer 8

1. Was the promise or event an express condition?
2. If yes, was there a waiver?
3. If no, was there substantial performance y the breaching party?
4. Was there a breach
5. Was breach total or partial?
6. Was breach material or Trivial?

Question 9

Waiver

Answer 9

knowing and voluntary relinquishment of a known right

Question 10

Total breach v partial breach

Answer 10

Total: aggrieved party is free from obligation to perform and has a cause of action against breaching party
partial breach: performance did not precisely conform but is close enough (breaching party may have to compensate for damages but other party not relieved of obligations to perform

Question 11

Material Breach v Trivial Breach

Answer 11

• significant enough that performance will be suspended/not substantial performance

Question 12

Factors to consider in determining whether breach is material

Answer 12

ONLY DO THIS IF THERE IS PARTIAL PERFORMANCE
1. to what extent has the injured party received substantial benefit which he could have reasonably anticipated
2. extent to which the injured party may be adequately compensated in damages for lack of complete performance
3. extent to which the party failing to perform has already partly performed or made preparations for performance
4. the greater or less hardship on the party failing to perform in terminating the K
5. The willful, negligent, or innocent behavior of the party failing to perform
6. the greater or less uncertainty that the party failing to perform will perform the remainder of the K
(TOC - no 1 factor dispositive)

Question 13

Doctrine of Prevention

Answer 13

a concept of good faith - one will not take efforts to prevent from happening. reuired a reasonable effort

Question 14

Condition Precedent

Answer 14

an act or event which must occur before a duty to perform a promise in the agreement arises. Can be express or implied