In a contractual agreement with another party, it may not always be easy to ascertain when the contract has been breached and legal action can be initiated. In some cases, there is total nonperformance of the obligations and the situation is clear cut; the breaching party is liable for damages and the non-performing party’s obligations are excused under the contract. In cases where there is a dispute about how the contract was performed, it is less obvious whether there is a breach that annuls the contract. It is important for the performing party to know when he is excused from performing and when the contract can be considered void.
Failure to perform. The most obvious breach occurs when one party fails to perform the terms of the contract as promised. The damages owed to the non-breaching party should be equivalent to the amount necessary to place the injured party in the position he would have been in had the contract been performed.
Partial performance. A party can bring an action for damages where the breaching party has not completed performance of the agreement in accordance with its terms. The party who suffered the partial breach is entitled to damages that would cover the reasonable costs of the completion of the contract. The completion of the contract should not involve waste, if feasible.
Substantial performance. Substantial performance of a contract occurs when one party performs the essential terms of the contract even though he has not complied with all the terms of the contract. Where a party has substantially performed, there is no material breach. When a court finds that a party has substantially performed, the opposing party will generally be held to his obligations under the contract. Substantial performance typically involves contracts where performance of specific aspects of the agreement are challenged by one of the parties. For example, in construction contracts, substantial performance may apply where there is a dispute concerning the use of materials or the quality of the work. This concept does not apply in most cases to the sale of goods.
Anticipatory repudiation. When one party categorically refuses to perform his obligations under the contract, the contract is regarded as breached. The repudiation of the contract either through words or conduct immediately absolves the other party from performing his obligations and permits the non-breaching party to claim a breach of contract. Repudiation can occur through: (i) explicit rejection, (ii) acting in a way that makes it impossible for the other party to perform, or (iii) transfer of the property to another party, if the subject of the contract is property.
The experienced team of attorneys at the Law Offices of Mark Weinstein, P.C. can help you litigate your real estate claims. Contact Mark Weinstein and his colleagues at (770) 888-7707 or visit them at http://www.markweinsteinlaw.com to find out how they can advise you.