A breach of contract occurs when a party fails to adhere to the requirements of a contract. Missouri recognizes the concept of anticipatory breach of contract by repudiation. An anticipatory breach is the equivalent of an actual breach of contract. TDV Transp., Inc. v. Keel, 966 S.W.2d 347, 349 (Mo. App. E.D. 1998). Generally, to establish…
Legal Articles
Merger Doctrine, Contracts
A “merger clause” is a common provision in a contract. It will usually state something along the lines of the contract being a “complete and exclusive statement of the agreement.” If a contract is a final, complete agreement, the parol evidence rule prohibits prior or contemporaneous oral agreements which vary or contradict the written terms…
Contracts: Terminating Third-Party Beneficiary Rights
Certain third-party beneficiaries to a contract may sue for breach of contract. This is true even though they are not a signer to the contract. There are three types: donee, creditor, and incidental. Donee and creditor beneficiaries may sue as a third-party for breach of contract, but incidental beneficiaries cannot. There are certain situations when…
Standing for Breach of Contract
“[O]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” Verni v. Cleveland Chiropractic Coll., 212 S.W.3d 150, 153 (Mo. 2007). It is difficult to prove that you are a third-party beneficiary. The reasoning for this high hurdle is that courts are reluctant to spread breach of…
Material Breach, Substantial Performance
There’s a distinction between a breach of contract and a material breach of contract. Depending on the legal situation, the distinction is quite significant. For example, if a party first materially breaches the contract, the party may not be able to sue subsequently to enforce the contract. The reasoning is that if they don’t follow…
Economic Loss Doctrine
Contract claims and tort claims are generally separate theories of recovery. Indeed, “the mere failure to perform a contract cannot serve as the basis of tortliability.” State ex rel. William Ranni Assoc., Inc. v. Hartenbach, 742 S.W.2d 134, 140 (Mo.1987). In a similar vein, or stated differently, the economic loss doctrine prohibits a plaintiff from…
Contract: Time for Performance
Written contracts often include precise language covering when certain acts must be done. For example, contracts often include provisions as to when payment should be made and when parties are obligated to perform their contractual duties. What happens when a contract is silent on timing? When a contract does not specify a time for performance,…
Specific Performance, Land, Costs
Specific performance is a contract remedy. It is when one party breaches a contract and the plaintiff asks the court to order the breaching party to perform its contractual obligation, rather than awarding money damages. Courts have discretion when it comes to awarding specific performance. Smith v. Najafi, 584 S.W.3d 389, 394 (Mo. Ct. App….
Illusory Promise, Breach of Contract
Contracts must be mutual to be enforceable. “Mutual” means there must be mutuality of obligation. Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429, 443 (Mo. Ct. App. 2010). Contracts that give one party a right to cancel can be considered illusory. An “illusory promise” does not create a contract. It is neither enforceable, nor operative…
Joint Liability, Joint Contracts
Joint and several liability is where the financial burden of harm among the parties at fault is allocated between two or more defendants. Smith v. Coffey, 37 S.W.3d 797, 799 (Mo. 2001). With tort-based claims, joint or concurrent tort-feasors are severally and jointly answerable to the injured party for the full amount of the injuries….