BREACH OF CONTRACT
breach of contract.Violation of a contractual obligation by failing to perform one’s own
promise, by repudiating it, or by interfering with another party’s performance. [Cases: Contracts
312, 315. C.J.S. Contracts § 561.]
“A breach may be one by non-performance, or by repudiation, or by both. Every breach gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has at least a claim for nominal damages. If a court chooses to ignore a trifling departure, there is no breach and no claim arises.” Restatement (Second) of Contracts § 236 cmt. a (1979).
active breach of contract.Civil law. The negligent performance of a contractual obligation, to the point of acting outside the contract’s terms. • Under Louisiana law before 1984, active breach of contract was contrasted with passive breach of contract, which was a failure to perform the obligations created by the contract. Unlike a passive breach, an active breach of contract could give rise to a claim in contract and in tort. The distinction was abolished in 1984. Cf. passive breach of contract. [Cases: Contracts 312. C.J.S. Contracts § 561.]
anticipatory breach.A breach of contract caused by a party’s anticipatory repudiation, i.e., unequivocally indicating that the party will not perform when performance is due. • Under these circumstances, the nonbreaching party may elect to treat the repudiation as an immediate breach and sue for damages. — Also termed breach by anticipatory repudiation; constructive breach. See anticipatory repudiation under REPUDIATION. [Cases: Contracts 313. C.J.S. Contracts § 534.]
“A repudiation by one party may occur before the time for performance has arrived. Such a repudiation is called an anticipatory breach, and it gives the innocent party the option of treating the contract as terminated at once and suing for damages immediately if he chooses or, alternatively, of waiting until the time of performance has arrived, and then again calling on the other party to perform. Should he choose the latter course he runs the risk that the contract may possibly become frustrated in the interim, in which case he will have lost his right to damages.”
P.S. Atiyah, An Introduction to the Law of Contract 298 (3d ed. 1981).
constructive breach.See anticipatory breach.
continuing breach.A breach of contract that endures for a considerable time or is repeated at
short intervals.
efficient breach.An intentional breach of contract and payment of damages by a party who would incur greater economic loss by performing under the contract. See EFFICIENT-BREACH THEORY. immediate breach.A breach that entitles the nonbreaching party to sue for damages
immediately.
material breach.A breach of contract that is significant enough to permit the aggrieved party to elect to treat the breach as total (rather than partial), thus excusing that party from further performance and affording it the right to sue for damages. [Cases: Contracts 317, 318. C.J.S.
Contracts §§ 334, 450–455, 507, 541–544.]
“In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.” Restatement (Second) of Contracts § 241 (1979).
partial breach.A breach of contract that is less significant than a material breach and that gives the aggrieved party a right to damages, but does not excuse that party from performance; specif., a breach for which the injured party may substitute the remedial rights provided by law for only part of the existing contract rights. [Cases: Contracts 319. C.J.S. Contracts § 593.]
passive breach of contract.Civil law. A failure to perform the requirements of a contract. • Under Louisiana law up to 1984, passive breach of contract was contrasted with active breach of contract, which was negligence in performing a contractual obligation. While an active breach of contract could give rise to claims in contract and in tort, a passive breach of contract usu. did not give rise to a tort claim. Cf. active breach of contract. [Cases: Contracts 315. C.J.S. Contracts §
561.]
total breach.A breach of contract for which the remedial rights provided by law are substituted for all the existing contractual rights, or can be so substituted by the injured party; esp., a material breach that gives rise to a claim for damages based on the aggrieved party’s remaining rights to performance under the contract. [Cases: Contracts 317. C.J.S. Contracts § 507.][Blacks Law 8th]