Actual Breach
Actual breach refers to a situation where a party fails to fulfill its obligations as specified in a contract or legal agreement. It occurs when one party does not perform as promised, leading to a violation of the terms of the contract. This breach can result in legal consequences, such as the non-breaching party seeking damages or specific performance.
5 Key excerpts on "Actual Breach"
- B.S. Patil, S.P. Woolhouse(Authors)
- 2019(Publication Date)
- CRC Press(Publisher)
...10 Breach of Contract 10.0 Introduction A breach of a contract is failure to perform an obligation arising out of the contract. Where there is failure to perform an obligation, in whole, it is a total breach. When an agreement is broken only in part it is a partial breach. If a party announces, before his performance is due, his definite unwillingness or inability to fulfil the contract, he thereby admits he is guilty of a breach. The breach in such a case is called an anticipatory breach. Occasionally a party may deliberately incapacitate himself or render impossible the performance of his contract duties; or may so interfere to render performance by the other party impossible. Such tactics also constitute a breach of contract. Every breach of a contractual obligation confers upon an injured party a right of action. However, there are a number of valid excuses for non-performance of contractual obligations. An actionable breach of contract, therefore, occurs when a promisor, without sufficient excuse or justification, fails to perform in accordance with the dictates of his agreement. Further, there is a distinction between breach of a contract and termination of a contract. When a contract comes to an end it is said to be terminated. Breach of contract may constitute a means of contract termination. However, there are a number of ways other than a breach by which a contract can be terminated. Full and satisfactory performance by both sides is the usual mode. The other modes include: Release under seal Rescission by consent of parties Accord and satisfaction Exercise of option given to a party in a contract to terminate under certain circumstances or events Rescission by a party on account of repudiation or non-performance by the other party Frustration or impossibility of performance It may be noted that many common forms of breach of important contract conditions are dealt with in their appropriate places in different chapters in this book...
eBook - ePubComparative Contract Law
An Introduction
- Ermanno Calzolaio(Author)
- 2022(Publication Date)
- Routledge(Publisher)
...8 Breach of contract DOI: 10.4324/9781003251606-8 8.1 Specific performance and/or damages The civil law systems are familiar with a basic principle in the case of breach of contract: the performing party has the right to specific performance (or ‘direct enforcement’, according to another terminology often used), unless this is materially impossible (for example, if a singer refuses to sing). As far as it is possible, the law protects the interest pursued by the performing party when concluding the contract, so as to obtain performance from the other party. From this perspective, damages are considered as an unsatisfactory equivalent. If a person concludes a valid contract in order to buy a painting and subsequently the painter refuses to deliver the painting, the interest of the buyer is to have that painting, not to have the equivalent monetary compensation. That is why the legal system provides for specific performance. In principle, the common law approach is different. Damages are the rule and specific performance the exception. 1 The reasons for such a sharp difference are closely connected with the historical evolution of contract law rules from the writ of trespass, an ‘extra-contractual’ remedy that was progressively extended to cover cases of breach of a contractual promise (‘assumpsit’). A successful trespass action gave rise to damages. That is why, by default, damages was the relief for breach of contract. Specific performance gradually evolved only as an equitable remedy. 1 J. Cartwright, Contract Law. An Introduction to the English Law of Contract for the Civil Lawyer, 2nd ed., Oxford University Press, Oxford, 2013, p. 265. With these basic ideas in mind, it is now possible to distinguish between the enforcement of (a) non-monetary obligations and (b) monetary obligations. In the case of non-monetary obligations, the difference between civil law and common law described above emerges quite clearly...
eBook - ePub- Chris Monaghan(Author)
- 2015(Publication Date)
- Routledge(Publisher)
...Where a condition has been breached the innocent party may choose to treat the breach as amounting to a repudiatory breach and this will discharge the contract. The innocent party may still obtain damages from the defendant. Alternatively, the innocent party may affirm the breach and thus choose to keep the contract alive (see Figure 3.3). He may still obtain damages for the breach. Sometimes a party may inform the other party that there will not be breach of contract before the breach occurs. This is known as an anticipatory breach. The innocent party may be able to affirm the breach and continue with their own obligations and thus will be able to attempt to recover the full contractual amount owed (see White & Carter (Councils) Ltd v McGregor [1962] AC 413). REMEDIES FOR BREACH OF CONTRACT In Chapter 2 we saw how the courts can award both common law and equitable remedies. Where there is a breach of contract the innocent party, depending on how the term is classified, may have a right to repudiate the contract. The usual remedy for breach of contract is common law damages. The measure of damages is intended to protect the claimant’s expectation interest, that is to seek to put the claimant in the financial position that she would have been in had the defendant performed his contractual obligations. However, the claimant could instead seek to recover her reliance interest, which would recover any expenses incurred in performing her obligations. The courts may refuse to permit the claimant to recover her expectation interest where it is impossible to say with certainty just what the claimant’s financial position would have been had the contract been performed. Where this occurs the courts may calculate damages according to the reliance interest (see Anglia Television Ltd v Reed [1972] 1 QB 60). The claimant must prove that the defendant caused her losses and that the damages sought cannot be too remote and must be foreseeable (see Hadley v Baxendale (1854) 9 Ex 341)...
eBook - ePub- Richard Stone, James Devenney(Authors)
- 2022(Publication Date)
- Routledge(Publisher)
...Mentioned in Goldman Sachs International v Videocon Global Ltd [2016] EWCA Civ 130. 14.6 DISCHARGE BY BREACH A breach of contract may have a range of consequences. It may entitle the innocent party to seek an order for performance of the contract, to claim damages, or to terminate the contract, or some combination of these. It is termination that we are concerned with in this chapter, 46 since this will also entail the discharge of many future obligations. Where the innocent party terminates a contract as a result of a breach by the other side, it is in fact likely to be indicating three things: (1) that it will not perform any of its outstanding obligations under the contract; (2) that it will not expect the other party to perform any of its outstanding obligations, and will reject performance if it is tendered; and (3) that it may seek financial compensation (damages) for losses resulting from the other party’s breach. 47 46 The other two are dealt with in Chapter 15. 47 In some cases damages will not be sought if, for example, defective goods are supplied under a sale of goods contract...
eBook - ePub- Scott J. Burnham(Author)
- 2011(Publication Date)
- Wiley(Publisher)
...Still, a system based on allocation of resources through contract is more effective than alternatives such as systems that enforce all contracts or that allocate resources through central planning. Recognizing How Contract Law Limits the Damages for Breach The plaintiff in a breach of contract case faces an uphill battle. Any damages the court awards are limited by the following considerations: Causation: The plaintiff must prove that the breach caused the loss. Certainty: The plaintiff must prove the damages to a reasonable certainty. Foreseeability: The plaintiff can recover only the losses that the defendant would reasonably have known, at the time the parties made the contract, would likely result from the breach. Mitigation: The plaintiff must make reasonable efforts to minimize the cost of the breach. I discuss all these points in this section. Concluding whether the breach caused the loss The rule of causation requires a plaintiff to prove that breach caused the loss. Proving that the loss resulted from the breach is usually obvious and generally not an issue. Sometimes, however, causation gets tangled up with consequential damages and mitigation and can become an issue when the breach has multiple causes. (See the later sections “Limiting damages with the rule of foreseeability” and “Asking whether the non-breaching party mitigated the loss.”) For example, in the case of Freund v. Washington Square Press, the plaintiff was Freund, a college professor and author who sued his publisher because the publisher failed to publish his book as promised. In addition to suing for the expectancy, Freund also claimed that because his book wasn’t published, he didn’t get a promotion. But the court found that in spite of the breach and his failure to publish, he had been promoted without delay. Therefore, the breach didn’t cause that loss. In other cases, certain losses may be traced back to a plaintiff’s failure to mitigate rather than to the breach itself...
