As a party to a contract, you generally would not get to the issue of remedies unless you first define whether there is a breach.
Meeting the definition of breach of contract occurs when one of the parties fail to act or perform according to the terms of the agreement. This can be as simple as performing to commercially acceptable practices.
The definition of breach of contract starts with the written agreement itself. Understanding the terms and conditions, the rights of the parties are all critical aspects of the analysis.
Understanding the level of performance required can help you to better understand breach definition. An example would be a construction company that is required to have the first half of a building finished within in six months. It is now month seven and the building 25% finished.
In theory, there is a material breach of contract because the level of performance is not met and this was a material part of the agreement.
Anticipatory Breach of Contract
If you are involved in a dispute where the other party makes it clear before the time of performance is due that it cannot perform this can be deemed an anticipatory breach of contract. There are various definitions and aspects of this action.
Anticipatory repudiation: When the other party expressly declares that it will not perform when required, there must be a clear, absolute, unequivocal refusal to perform the contract according to its terms. If the facts are clear then a breach of contract may be warranted.
Define breach for anticipatory conduct: This breach of contract definition and legal theory may be expressed by a party’s conduct that makes it impossible to subsequently perform. An example might occur when the other party continuously fails to deliver materials despite your numerous attempts to contact them but never received any follow up communications.
What can you do when there is an allegation? A recommended action when your anticipate that the other side has failed to comply with the terms of the contract is to immediately notify them in writing and request assurances that it will comply with the contract terms.
You may also want to give them a certain amount of time to cure the problem. This could potentially strengthen your case should you end up in litigation.
When there is a breach from the other side can you stop performance? The answer is generally NO. The simple fact that the other side has breached the contract does not excuse you from performance. You must continue to perform to the extent that you can.
Is there are minor breach? If the other side has substantially performed you generally cannot sue for specific performance. You only sue for actual damages.
Material Breach Definition
When you define breach of contract facts, see whether a critical part of the contract is not performed. An example would be if you agreed to pay for a driveway repairs with specific material and you received services but with a different material. You can sue for the difference in cost to make the correction. The required materials, if mentioned in the contract, are defined as“material.”
Depending on the facts and circumstances, you may be entitled to certain breach of contract claims. They can include specific performance of the contract, monetary damages and more.
If you are considering whether you should file a case, you may want to consult with a breach of contract attorney. He or she can better assess the facts and give you legal advice as to the next steps or whether legal requirements and the definition of breach of contract are all met.
For help with a pending breach of contract case, call our attorneys at 1-866-601-5518.