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.