Help with Breach: Material - Partial - Total

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Help with Breach: Material - Partial - Total

Postby stocksly33 » Fri Dec 03, 2010 4:17 pm

Could y'all fill in the ?s and check my workflow for analyzing a breach? Common law, not UCC.

1. Is the breach Material? - R2K 241 factors.
- If Yes, determine if the breach is Partial or Total.
- If No, ???

2. Partial Breach
- A breach is partial when there is a possibility of a cure.
- Breaching party may either: Cure defect, or Pay damages for remainder of performance (cost to complete or difference in value)
- Nonbreaching party's duty is only suspended, not terminated.

3. Total Breach
- A breach is total if ... R2K 242 factors.
- (what are the nonbreaching party's options for total breach? damages, etc.)

4. Substantial Performance? (I don't understand how this is intertwined with material/total/partial breach)

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Re: Help with Breach: Material - Partial - Total

Postby JCougar » Fri Dec 03, 2010 4:35 pm

1. If the breach is not material, the promisor has basically substantially performed, and you, the injured party/promisee are not released from your own contractual duty, and you have to substantially perform yourself. But you still can look at damages for diminution in value.

3. Remedies for total breach are wide-open. You can sue for Expectation (diminution in value OR cost of completion, depending on the facts), or you can sue for Reliance or in some rare cases Restitution. And you are released from performing yourself.

That's all just off the top of my head, though...I'm studying property right now and don't have my K outline with me. So someone correct me if I'm wrong.

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