Also known as: breach by non-performance · nonperformance · failure to perform
Written by attorneys · grounded in primary & secondary sources — see below
A failure by a party to a contract to render a promised performance. The failure gives rise to a claim for total breach only when it substantially impairs the value of the contract to the injured party at the time of the breach so that it is just to allow recovery of damages based on all remaining rights to performance.
Boreal Energy contracted with Belinda Baxter to supply fuel daily for six months. Boreal Energy missed deliveries for three consecutive weeks. The missed deliveries substantially impaired the value of the contract to Belinda Baxter at the time of the breach. Belinda Baxter may therefore recover damages based on all her remaining rights to performance.
Acme Parts contracted with Delta Assembly to deliver component shipments monthly for a year. Acme Parts failed to deliver the final four shipments. The nonperformance substantially impaired the value of the contract to Delta Assembly at the time of the breach. Delta Assembly may recover damages based on all its remaining rights to performance.
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Horizon Homes agreed to construct a residence for the Parkers in staged payments tied to completion milestones. Horizon Homes stopped work after the foundation stage and performed no further. The nonperformance substantially impaired the value of the contract to the Parkers at the time of the breach. The Parkers may recover damages based on all remaining rights to performance.
TechFlow licensed inventory software to RetailMax with a duty to supply quarterly updates for three years. TechFlow ceased all updates after the first year. The nonperformance substantially impaired the value of the contract to RetailMax at the time of the breach. RetailMax may recover damages based on all its remaining rights to performance.
Transatlantic Financing agreed to carry cargo via the Suez Canal. After the canal closed the carrier completed the voyage around the Cape. The carrier sought recovery for the added expense. The court treated the claim as one for breach by nonperformance of the original route obligation.
Loral contracted with Austin Instrument for components. Austin Instrument refused further deliveries unless Loral agreed to higher prices. Loral paid the increased prices under protest to avoid production stoppage. The court examined whether the refusal constituted breach by nonperformance that justified the later price adjustment.
A breach by nonperformance gives rise to a claim for total breach only if it substantially impairs the value of the contract to the injured party at the time of the breach so that it is just to allow recovery of damages based on all remaining rights to performance.
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A repudiation that occurs before any breach by nonperformance and before the obligor has received the full agreed exchange gives rise to a claim for damages for total breach on its own.
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A party's duty to pay damages for total breach by repudiation is discharged if the repudiated duty would have been discharged by impracticability or frustration before any breach by nonperformance.
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No. When the only remaining duties are unrelated installment payments of money, a breach as to less than the whole does not give rise to a claim for damages for total breach.
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…way. In contrast, in strict products liability cases involving manufacturing defects, the harm arises from the product's failure to perform in the intended manner due to some flaw in the fabrication process. In the latter class of cases, the flaw alone is a sufficient basis to hold the manufacturer liable without regard to…