BREACH AND REPUDIATION
BREACH
ANALYSIS
Performance due
Performance starts
1. What's the promise
and performance?
2. What are the
conditions? express,
constructive, promissory
3. When is performance
due?
4. Did full performance
occur?
5. Material/Immaterial
breach?
6. What are promisee's
remedies?
MATERIAL BREACH
No hope for
bargained-for
performance.
(unfulfilled condition to
promisee's
performance)
Promisee Remedy:
1. Give R time to cure
2. If no cure, terminate
3. Stop performing
4. Sue for expectancy
Promisor may anticipatorily
repudiate (BOC).
Promise
PARTIAL BREACH
Promisee Remedy:
1. Both parties keep performing
under K.
If cured fully = no breach
If cured w/ immaterial breach =
substantial performance
Performance finished
Promisee can repudiate back or
elect not to repudiate and wait
for retraction.
MATERIAL BREACH
SUBSTANTIAL
PERFORMANCE
OR
SUBSTANTIAL
PERFORMANCE
(substantial compliance
with promisee
expectations)
Promisee Remedy:
1. Return performance
2. but sue for damages or
use offset.
PARTIAL BREACH
Election NOT to
Repudiate
Difference in value b/w
promised and what was
performed.
Partial Breach
Fully Cured
OR
Total breach
Breach may be
divisible.
or elect to not cancel K
and treat uncured
material breach as
partial breach
(binding choice)
Unjust enrichment for
promisee = breaching
party restitution claim.
Anticipatory repudiation
(promisee)
Repudiation (promisor)
REPUDIATION
Promisee Remedy:
1. Repudiate back.
2. or pause performing
3. and give breacher R
time to cure.
4. No damages (breach
cured) or sue for
substantial
performance or sue
for material breach.