Contract Performance In
Traditional and E-Contracts;
Breach of Contract and Remedies
Chapter 18 & 19

Introduction
• A party may be discharged from a valid contract by:
– A condition occurring -- or not occurring.
– Full performance or material breach by the other party.
– Agreement of the parties.
– Operation of law.
2

Introduction
• A party may be discharged from a valid contract by:
– A condition occurring -- or not occurring.
– Full performance or material breach by the other party.
– Agreement of the parties.
– Operation of law.
3

Conditions
• Condition Precedent.
– Condition that must be fulfilled before a party’s performance can be required.
– Requires absolute duty to perform.
4

Conditions
• Condition Subsequent.
– When a condition operates to terminate a party’s absolute promise to perform, after the time of absolute performance was due.
5

Conditions
• Concurrent conditions.
– When each party’s performance is conditioned on the other party’s performance or tender.
– Both parties required to perform their duties simultaneously.
6

Conditions
• A possible future event, the occurrence or nonoccurrence of which will trigger the performance of a legal obligation or terminate an existing obligation under a contract.
7

Discharge, Performance, and
Tender
• Discharge - the termination of a party’s obligations arising under a contract.
• Discharge occurs either when:
– Both parties have performed their contractual obligations.
– Events, conduct of the parties, and/or operation of law release the parties from their obligations to perform.

Discharge, Performance, and
Tender
• Performance
– Fulfilling one’s contractual duties.
• Tender
– An unconditional offer to perform an obligation by a person who is ready, willing, and able to do so.

Contractual Performance
• Complete vs. Substantial Performance
– In order to qualify as substantial performance, the party’s performance must not vary greatly from that promised in the contract, and it must create substantially the same benefits as those promised in the contract.

Contractual Performance
• Complete vs. Substantial Performance
– If one party substantially performs, the other party’s duty to perform remains absolute, but the other party may be entitled to recover damages for the substantially performing party’s failure to fully perform.

Contractual Performance
• Time for Performance.
– If no time is stated in contract, reasonable time is implied.
– If time is “of the essence” it becomes a condition precedent to performance.
– Failure to complain may be a waiver.
12

Breach And Repudiation
• Breach of Contract
– A party’s failure, without legal excuse, to substantially perform the obligations he or she has promised to perform.
– If a party’s breach is non-material, the non-breaching party’s duty to perform may be suspended until the breach is remedied or cured.

Breach And Repudiation
• Anticipatory Repudiation
– An action by a party to a contract that indicates that he or she will not perform a contractual obligation due to be performed in the future.
– Such a repudiation will excuse the nonrepudiating party from performing under the contract.

Discharge By Agreement
• Rescission - the process by which the parties cancel a contract and return one another to their pre-contract status.
• Novation - substituting a new contract for an old one thereby terminating the parties’ rights and duties under the old contract.
• Accord and Satisfaction - an agreement between the parties to accept different performance than originally promised.

Discharge By Impossibility
• A party may be relieved of his or her contractual duties when performance becomes either impossible or totally impracticable through no fault of either party to the contract.
• An objective standard is used.
• Temporary impossibility only may allow delay of performance.
•
Force Majeure clause

Impossibility Of Performance
• Temporary Impossibility
– A change in circumstances that makes performance temporarily impossible will suspend but not excuse performance.

Suing For Damages
• A breach of contract entitles the nonbreaching party to sue for money damages.

Types Of Monetary Damages
• Compensatory Damages - compensate the non-breaching party for the injuries or losses actually sustained due to the breach
(includes incidental damages).

Damages
• Compensatory Damages.
• Standard Measure: difference between value of promised performance and value of actual performance. Incidental
Damages: expenses cause directly by breach of contract.
•
Sale of Goods: difference between contract and market price.
•
Sale of Land: specific performance.
20

Types Of Monetary Damages
• Consequential Damages - indirect losses which were reasonably foreseeable.
See Hadley v. Baxendale
• Punitive Damages - designed to punish a wrongdoer.
• Nominal Damages - awarded if no actual damages are provable.

Mitigation, Liquidated Damages,
And Penalties
• Mitigation of Damages
– In most situations, when a breach of contract occurs, the non-breaching party has a duty to take whatever action is reasonable to minimize the damages caused by the breach.

Mitigation, Liquidated Damages,
And Penalties
• Liquidated Damages
– Contract provisions specifying a certain sum of money to be paid by the breaching party in the event that he or she fails to perform as required.
– Generally based on a reasonable estimate of the value of the promised performance.
– Cannot be a penalty

Equitable Remedies
• In addition to money damages, there are several equitable remedies available.

Equitable Remedies
Rescission and Restitution
• Rescission - canceling a contract and returning the parties to their pre-contract position. Rescssion requires restitution.
• Restitution - returning goods, property, or money previously transferred in order to restore the non-breaching party to his or her pre-contract position.

Equitable Remedies
• Specific Performance - requiring the breaching party to perform exactly as required (only granted only when money damages would be an inadequate remedy and the subject matter of the contract is unique).
• Reformation - a remedy allowing the contract to be re-written to reflect the true intent of the parties.

Contract Performance In
Traditional and E-Contracts;
Breach of Contract and Remedies
Chapter 18 & 19