What constitutes a Breach of Contract?
* The question of remedies does not become important until it is first determined that a contract has been violated or breached.
Breach - failure to act or perform in the manner called for in a contract.
Anticipatory breach – Promisor’s repudiation of the contract prior to the time that performance is required when such repudiation is accepted by the promisee as a breach of the contract.
Anticipatory repudiation - repudiation made in advance of the time for the performance of the contract obligations.
* To constitute such repudiation, there must be a clear, absolute, unequivocal refusal to perform the contract ...view middle of the document...
It does not show any intent to ignore other provisions of the contract.
* Modern contracts commonly specify that the terms of a contract shall not be deemed modified by waiver to any breaches. This means that the original contract remains agreed to. Either party may therefore return to, and insist on, compliance with the original contract.
Reservation of rights- assertion by a party to a contract that even though a tendered performance is accepted, the right to damages for nonconformity to the contract is reserved.
Remedy- action or procedure that is followed in order to enforce a right or to obtain damages for injury to a right.
* PG 439 FIGURE 20-1 *
Specific Performance – action brought to compel the adverse party to perform a contract on the theory that merely suing for damages for its breach will not be an adequate remedy.
Compensatory damages- sum of money that will compensate an injured plaintiff for actual loss.
* Have two branches: direct damages and consequential (special) damages
Nominal damages- nominal sum awarded the plaintiff in order to establish that legal rights have been violated although the plaintiff in fact has no sustained any actual loss or damages.
Punitive damages(exemplary) – damages, in excess of actual loss, imposed for the purpose of punishing or making an example of the defendant.
Direct damages(general damages)- losses that are caused by breach of a contract.
Consequential damages (special damages)- damages the buyer experiences as a result of the seller’s breach with respect to a third party
Effect of failure to mitigate: damages: The effect of the requirement of mitigating damages is to limit recovery by the nonbreaching party to the damages that would have been sustained has this party mitigated the damagers where it was possible to do so.
*Mitigate to reduce
* When one party commits a material breach of the contract, the other party may rescind the contract; if the party in default objects, the aggrieved party may bring as action for recission
Injunction- court order to refrain from doing or to do a specific act. Statute use in labor disputes has been greatly restricted.
Liquidated damages- Provision stipulating the amount of damages to be paid in the event of default or breach of contract.