Also known as: failures to perform · failed to perform · failing to perform · nonperformance · non-performance · failure of performance
Written by attorneys — see sources below.
A party's omission to fulfill an obligation imposed by contract or by a legal duty to protect third persons or their property. The omission supports a claim for total breach when it substantially impairs the value of the remaining performance or contributes materially to harm that the duty was meant to avert.
Fusion Power contracted with Fisher Foods for daily 5 a.m. deliveries of fresh baked goods to support its new restaurant's grand opening. Fisher Foods delivered at 10 a.m. on opening day after most reservations had left, forcing menu substitutions and lost promotional impact. Fusion Power withheld payment and terminated the contract. The late performance substantially impaired the value of the remaining deliveries to Fusion Power.
Midnight Satellite hired Delta Fiber to provide 24/7 monitoring through its own operations center to maintain 99.9 percent uptime. Delta Fiber delegated the monitoring to Highland Telecom without notice. Repeated outages followed the delegation and disrupted Midnight Satellite's operations. Delta Fiber had a duty to protect the network and failed to avert the harm by performing the monitoring itself.
Noon Cars contracted with Crown Automotive for all custom brake assemblies needed for a new production run. Crown announced it would supply only half the required monthly orders because it had taken a larger contract from a competitor. Noon Cars treated the announcement as a total breach and covered at higher cost. Crown repudiated its duty before performing any of the remaining deliveries.
The Sunrise Shelter Board and its executive director were both responsible for using trust funds to maintain the building and add beds. The board diverted funds to salaries while the director approved the expenditures. The building deteriorated and no beds were added. Each party is liable for the entire harm that resulted from the common failure to perform the maintenance duty.
Central Stage promised Republic Productions a bonus if a series reached a 15 percent subscriber increase. Central Stage repudiated the promotional duties and the bonus obligation two months before the deadline. State regulations enacted after the contract made the required promotions unlawful. Central Stage's duty to pay damages for the repudiation was discharged because the duty would have been excused by impracticability before any non-performance.
A state legislature enacted a statute requiring local school districts to provide certain safety equipment but provided no funding or enforcement mechanism. A district failed to supply the equipment and a student was injured. Citizens could not determine whether the federal or state government bore responsibility for the failure to perform the safety function.
In March 1992, Alfonso Lopez, Jr., a twelfth-grade student at Edison High School in San Antonio, Texas, arrived at school carrying a concealed .38-caliber handgun and five bullets. Acting on an anonymous tip, school authorities confronted Lopez, who admitted possessing the weapon. Local police arrested him and charged him under Texas law with firearm possession on school premises. The following day, state charges were dismissed after federal agents charged Lopez with violating the Gun-Free School Zones Act of 1990. A federal grand jury indicted him on one count of knowing possession of a firearm at a school zone. Lopez moved to dismiss the indictment, arguing that the statute exceeded Congress's power to legislate control over public schools. The district court denied the motion, concluding that the statute was a constitutional exercise of Congress's power to regulate activities affecting commerce because the business of schools affects interstate commerce. After a bench trial, the court found Lopez guilty and sentenced him to six months' imprisonment and two years of supervised release. Lopez appealed to the Court of Appeals for the Fifth Circuit, which reversed the conviction, holding that the statute was beyond Congress's power under the Commerce Clause. The Supreme Court granted certiorari to review the case.
View caseA breach by non-performance supports 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 and it is just to allow recovery of damages based on all remaining rights to performance.
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Yes. When an obligor repudiates a duty before committing a breach by non-performance and before receiving the full agreed exchange, the repudiation itself gives rise to a claim for damages for total breach.
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A party's duty to pay damages for total breach by repudiation is discharged if it later appears that the repudiated duty would have been discharged by impracticability or frustration before any breach by non-performance.
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If two or more persons are under a common duty and failure to perform it amounts to tortious conduct, each is subject to liability for the entire harm resulting from the failure to perform the duty.
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…State and assigned duties in the performance of which the Secretary cannot be lawfully controlled by the President and for the non-performance of which he is not more responsible to the President than to any other citizen. It provides that he shall receive from the President all bills, orders, resolutions and votes of the Senate…