Business, Legal & Accounting Glossary
A breach of contract occurs when a person or company fails to perform or meet the terms of a contract, written or oral. Common breach of contract can include a homeowner failing to pay their mortgage, a celebrity not showing up at an event or a caterer failing to cater an event. Breach of contract is one of the most common types of lawsuits in which the plaintiff seeks specific damages.
To demonstrate a breach of contract you must prove you had a valid contract with another person. This is easy if you have a written contract and both parties have signed it. If the contract is oral you may need additional evidence, which varies from state to state. You must prove you upheld your legal responsibilities under the contract and the other party failed to do their duty under the contract. This can be proven if one party did not perform their duty, makes it clear they have no intention to perform their duty or makes it impossible for the other party to perform their duty. Finally, you must prove you suffered financial loss or were harmed by the breach.
n. failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work (“anticipatory breach”). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered “specific performance” of the contract.
This is a failure by one party to abide by the terms of a Contract, without lawful excuse (e.g., see: Frustration of contract). A breach may be:
If breach is anticipatory, the injured party may seek legal remedies immediately, even if there was originally a time limit on the contract. Moreover, if one party repudiates, the other may demand performance and continue to fulfil his own obligations. He does not have to treat the contract as discharged (indeed, he may not be able to).
If a contracting party believes that the contract has been breached, then various options are open to him:
In no case does a breach of contract, however fundamental, automatically discharge the contract, nor does it necessarily declare it void. This means, in particular, that an Exclusion clause that is to the benefit of the party in breach may still apply.
Any breach of contract gives rise to a cause of action; not every breach gives a discharge from liability. This will depend on whether the term breached is a condition or a warranty or whether there has been a repudiatory breach.
Damages are intended to compensate the innocent party for the loss that he has suffered as a result of the breach of contract. In order to establish an entitlement to substantial damages for breach of contract the injured party must establish that:
A breach of contract can be established even if there is no actual loss. In that case, there will only be an entitlement to nominal damages.
A minor breach, a partial breach or an immaterial breach, occurs when the non-breaching party is unentitled to an order for performance of its obligations, but only to collect the actual amount of their damages. For example, suppose a homeowner hires a contractor to install new plumbing and insists that the pipes, which will ultimately be sealed behind the walls, be red. The contractor instead uses blue pipes that function just as well. Although the contractor breached the literal terms of the contract, the homeowner can only recover the amount of his damages. Since no damages were inflicted, the homeowner receives nothing. (See Jacob & Youngs v. Kent, on which this example is based.)
A material breach is any failure to perform that permits the other party to the contract to either compel performance, or collect damages because of the breach. If the contractor in the above example had been instructed to use copper pipes, and instead used iron pipes which would not last as long as the copper pipes would have, the homeowner can recover the cost of actually correcting the breach – taking out the iron pipes and replacing them with copper pipes.This is also known as a partial breach
The Restatement (Second) of Contracts lists the following criteria to determine whether a specific failure constitutes a breach:
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.
American Law Institute, Restatement (Second) of Contracts § 241 (1981)
A fundamental breach (or repudiatory breach) is a breach so fundamental that it permits the aggrieved party to terminate performance of the contract, in addition to entitling that party to sue for damages.
A breach by anticipatory repudiation (or simply anticipatory breach) is an unequivocal indication that the party will not perform when performance is due, or a situation in which future non-performance is inevitable. An anticipatory breach gives the non-breaching party the option to treat such a breach as immediate, and, if repudiatory, to terminate the contract and sue for damages (without waiting for the breach to actually take place).
Typically, the judicial remedy for breach of contract is monetary damages. See damages. Where the failure to perform cannot be adequately redressed by money damage, the court may enter an equity decree awarding an injunction or specific performance.
The aggrieved person has a duty to mitigate or reduce damages by reasonable means. Liquidated Damages may be limited to a specific amount. In the United States, punitive damages are generally not awarded for breach of contract but may be awarded for other causes of action in a lawsuit. Limitation of Liability (Exculpatory) clauses. [Private agreement is permissible.] [Invalid when public interest is involved and there is willful conduct or gross negligence.]
In most cases, the burden of proving any given claim rests with the claimant, he who asserts must prove. Claims must be adequately documented which means that appropriate records must have been kept at the time the relevant work was executed. The proof will be discharged by the contractor or subcontractor proving his case on the balance of probabilities. This, however, must not be taken to mean that amounts arrived at by theoretical or notational calculations can be acceptable. Ascertainment involves the ordinary meaning of the word, i.e. to find out as a matter of fact.
A claim for the extra cost is the means of putting a Claimant back into the position in which he would have been but for the particular event complained of. Claims are not a means of turning a loss into a profit or obtaining a windfall. The level of recovery is the loss to the victim of the breach, not the gain by the defendant Teacher -v- Calder (1899).
In Surrey County Council -v- Bredero Homes TLR April 1993 CA the Developer purchased land from the Council and covenanted to develop it in a certain way. In breach of the covenant, he did not do so, but obtained planning permission to develop in a different way. The Council sued for the amount they might have received for agreed modifications to the covenant. The starting point or the conventional rule was that the remedy for breach of contract was an award of damages and damages at common law were intended to compensate the victim for his loss, not to transfer to the victim, if he had suffered no loss, the benefit which the wrongdoer had gained by his breach of contract. The Council had suffered no loss and therefore was only awarded nominal damages.
In D. O. Ferguson & Associates -v- Mr M Sohl (1992) the Employer only obtained nominal damages for the same reason but was able to recover in restitution.
The law allows only those losses which are not too ‘remote’. The rules stated in Hadley -v- Baxendale (1854) 9 Ex 341 are:
‘Such losses as may fairly and reasonably be considered as either arising –
This is perhaps, the most important of all the rules. Its application depends upon the particular circumstances of each case. The first limb of the rule relates to ‘general’ damages, whereas the second limb deals with abnormal or ‘special’ damages.
The rule was discussed and expressed in another way by Lord Justice Asquith in 1949 in the case of Victoria Laundry -v- Newman Industry Ltd in terms of ‘reasonable foreseeability’. This depends on the knowledge then possessed by the parties, or, at all events, by the party who later commits the breach. Knowledge is of two kinds -one imputed, the other actual. Everyone is taken to know what loss is liable to result from a breach of the ordinary course of things. This is the subject-matter of the “first rule” in Hadley -v- Baxendale. A contract-breaker also possess knowledge of special circumstances outside the “ordinary course of things” which would give rise to more loss. Such a case attracts the operation of the “second rule” so as to make additional loss also recoverable.
There are three possible measures of loss. The first is the loss of bargain. The second is wasted expenditure or reliance loss and the third is a claim in restitution. The normal measure for breach of contract is the loss of bargain. This measure of damages is intended to place the injured party in the same situation, as far as money can do it, as if the contract had been performed Robinson -v- Harman(1848).
This principle arises from the nature of contracts. Contracts involve the making of bargains and create expectations on each side which are intended to be fulfilled by the performance of the contract obligations. If, for instance, the sub-contractor does not complete his part of the development, then the measure of damages, in this case, will be the cost of completing the project in a reasonable manner less the contract price Mertens -v- Home Freeholds Co (1921) CA. This measure of damages, therefore, protects the expectations of the parties arising from the contract. Allowance must be made for the expense which may have been saved by the contractor not having to complete his side of the bargain. Where the breach of contract involves defective work the normal measure of damages is the cost of reinstatement taken at the time when the defect was discovered East Ham Corporation -v- Bernard Sunley (1966). The claimant will not necessarily lose his entitlement to damages if he waits for the outcome of the case before carrying out the remedial works, it all depends upon the circumstances of the case William Cory & Son Ltd -v- Wingate Investment (London Colney) Ltd (1980) 17 BLR 104 CA
In some cases, the measure of damages for defective work may instead be the reduction in the market value of the development. This will be the case when it is unreasonable for the defects to be put right, particularly where the value of remedial works is out of proportion to the value of the development and only affects the “amenity value” of the development GW Atkins Ltd -v- Scott (1980) 7 Const LJ 215 CA. The overriding requirement in the loss of bargain measure of damages is that actual loss should have occurred. Damages are based on the loss incurred by the injured party and are not based on the gain by the party in breach Surrey CC -v- Bredero Homes Ltd (1992) 3AllER 302.
In Obagi v Stanborough (Developments) Ltd (1993) TLR Dec 15 the Defendants had been in breach of contract in failing to apply for planning permission. The plaintiff sought recovery of his loss of profit measured as the difference between the value of the site and what he would have had to pay for it. Mr Justice Blackburne considered there was no essential difference between the evaluation of the defendant’s chances of getting planning permission and the plaintiff`s chances of winning a prize in Chaplin v Hicks or of the chance of success in the Fatal Accident claim in Kitchen v RAFA. He was, therefore, prepared to make an estimate of what were the chances and to reflect those chances in the amount of damages that might be awarded. There was however also another principle, which was whether that chance or probability was substantial. If it was it had to be evaluated. If it was a mere possibility it must be ignored. It was held that on the evidence the plaintiff had failed to establish that their chance of obtaining planning permission was more than a merely speculative possibility. The plaintiffs were therefore awarded only nominal damages of £5 and had to pay the Defendant`s costs.
In some circumstances, the claimant may have difficulty in proving loss of profit. He may then elect to claim for wasted expenditure, that is expenditure rendered futile by the defendant`s breach. This can include expenditure incurred before the contract was made CCC Films (London) -v- Impact Quadrant Films(1985); Anglia Television -v- Reed (1972). He cannot claim this reliance loss if he has made a bad bargain since the courts will not put him in a better position than he would have been if the contract had been performed. However, it is for the defendant in breach to show that the claimant made a bad bargain since it is the defendant who has made the matter an issue by his breach.
The two measures of damage, loss of bargain and wasted expenditure, are alternatives and mutually exclusive, at least so far as to prevent double recovery. The third measure of damages arises if there has been a total failure of consideration. The injured party can then make a claim in restitution. So for instance, if the sub-contractor has not performed at all, the contractor can claim for the return of monies paid. If the sub-contractor has been overpaid and has failed to complete, the contractor can recover the overpayment even if he has managed to have the work completed without in fact incurring any loss despite the overpayment D O Ferguson Associates -v- Sohl (1992) TLR Dec CA.
The expression quantum meruit means “the amount he deserves” or “what the job is worth” and in most instances denotes a claim for a reasonable sum.
A claim on a quantum meruit does not usually arise if there is an existing contract between the parties to pay an agreed sum. But there may be a quantum meruit claim where there is:
Judge Bowsher QC in his judgment in the case of Laserbore Ltd -v- Morrison Biggs Wall Ltd (1992) had to decide the meaning of “Fair and reasonable payments for all works executed”. He considered that the costs plus basis were wrong in principle even though in some instances it may produce the right result. The appropriate approach was to adopt general market rates.
At English common law the right of contribution is based on unjust enrichment in which there is a liability to a common demand. An award of contribution is not an award in damages but in restitution. The most common situations of concurrent liability in construction projects are where two persons are independently liable, whether in contract or tort, for the same damage. The measure of damages may be different in each case, but each would be liable in judgment for the full loss. Judgment against one person would release the other, and a defence would be to show that the judgment had been satisfied by payment against the other person. The Civil Liability (Contribution) Act 1978 extends and confers rights of contribution in English Law.
The Act is complicated and creates difficulties of analysis, but in summary, it applies whatever the legal liability, whether tort, breach of contract, breach of trust or otherwise. The person who is liable is entitled to claim contribution [Section 1(1)]. If a claim has been settled or compromised either before or after the proceedings commenced, the settlor can claim contribution for a bona fide payment, provided he can show that he would be liable if the factual basis of the claim against him could be established [Section 1(4)]. A contribution is recoverable from anyone who is liable for the “same damage” [Section 1(1)].
In Birse Construction Ltd v Haiste Ltd and Others( 1996) 76 BLR 26 CA the meaning of “same damage” was examined. Birse was the contractor employed to design and construct a storage reservoir and employed Haiste as its designer. The Employer, Anglian, retained Newton, joined to the action, to advise him. The reservoir was defective and a claim by the Employer against Birse was settled by agreement on the basis that Birse would construct a new reservoir at its own expense. Haiste sought a contribution from Newton. It was held that damage in “same damage” does not mean damages but is the harm suffered by “another person”. His Honour Roch LJ held that for there to be an entitlement to claim contribution the damage for which the person who claims contribution and the person from whom contribution is claimed has to be the damage suffered by the same person. This is because the person who is entitled to recover compensation for the damage has to be the person who suffered the damage. It was held that the damage suffered by Anglian, in this case, was the physical defects in the reservoir. The damage suffered by Birse was the financial loss of having to construct a second reservoir for Anglian. Anglian and Birse did not suffer the same damage. It was held therefore that Haiste was not entitled to a contribution from Newton.
The amount of contribution is not based solely on either causation or culpability, but these are factors in deciding the person’s responsibility and deciding what would be just and equitable.
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This glossary post was last updated: 26th April, 2020 | 23 Views.