crossarmant wrote: nonprofit-prophet wrote: crossarmant wrote:
nonprofit-prophet wrote:Quick Ks question:
A materially breaches, and upon learning of his material breach attempts to cure, but that attempt is rebuffed by B because B wants to cancel K. Is A saying it wants to cure and not being allowed to cure the same thing as A materially breach and curing (to turn material breach into substantial performance)?
Also, I seem to recall that if A materially breaches, A cannot sue on the K, correct?
I'm not sure about the amending and curing part, but I know that breaching party can sue based on the contract if the non-breaching party has been unjustly enriched. The example my prof used was if you're leasing an office and you have a big $15k printer/copier and you breach but leave the printer with the office, you can sue to reclaim the unjust enrichment against the office owner to recover for the cost of the printer.
Granted the office owner may sue for breach, w/ expectation dmg, etc. but you can still sue for Unjust Enrichment and are entitled to Restitution.
True. But there wouldn't be anything for them to sue on based on contract since they breached. Could you give an example of what situation you inquiring about then? My understanding is that once a party materially breaches, the non-breaching party may terminate the contract and after terminated, then they cannot collect for any form of unjust enrichment because it was not solicited after the termination occurred.
right but when you sue for unjust enrichment that isn't a suit on the contract. that is a quasi-contract suit
A material breach in and of itself is not sufficient to allow the non-breaching party to cancel the K. You have to run through a § 242 analysis of the material breach to decide if you've allowed enough time to cure. If A materially breaches and wants to cure but is not allowed to do so, what is his remedy? Essentially, if B cancels without allowing time to cure, B has breached the K, but from what I remember from class is that a party that has materially breached cannot sue on the contract, therefore it seems that A could only get reliance damages, not expectation damages, which seems unfair.
Now I can only see 2 ways around this. Either by offering to cure, A has not materially breached at all, but has substantially performed (weighing the cure factor in the § 241 test heaviest), or equating an offer to cure as the same thing as actually curing which allows A to claim he has turned material breach into substantial performance.