Under contract law, a breach occurs when a (1) party is under an absolute duty to perform, this (2) absolute duty of performance has not been discharged, and there is a (3) failure to perform in accordance with the contract’s terms. The non-breaching party, in turn, must be willing and able to perform the terms of the contract.
Once this has been established, the next question is whether the breach is minor or material. In determining materiality, the law generally looks at the amount of the benefit received by either party, adequacy of damages, extent of part performance, likelihood of performance, etc. If the breach is material, the non-breaching part may rescind (i.e., bring to an end) the contract and will have an immediate right to all remedies for breach of the entire contract, including total damages. If the breach is minor, then there are not as many things that can be done.
Because it is often difficult to determine when a “material” breach has occurred, and because contractual remedies often hinge on the nature and subject matter of the contract, consult legal counsel to ensure that the correct remedy is applied to a breaching party.
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