Also known as: non-performance · nonperformances · non performance
Written by attorneys · grounded in primary & secondary sources — see below
A failure to discharge an obligation under a contract when performance is due. Such failure constitutes a breach that may give rise to a claim for damages depending on the extent of impairment to the injured party's expectations.
Noelle North ordered custom parts from Nobel Dynamics for delivery by March 1. Nobel Dynamics failed to ship the parts on the due date. Noelle North covered at a higher price from another supplier and sued for the difference.
Nathan Nguyen contracted with Nova Pharmaceuticals for monthly shipments of a critical ingredient. After a plant fire Nova Pharmaceuticals announced it would deliver only half the required quantity. Nathan Nguyen treated the shortfall as total breach and sought damages for its remaining contract rights.
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Nancy Nelson agreed to pay Norton Bank for software development services. After the bank missed two milestones and laid off key staff Nelson demanded written proof of resumed progress. When the bank gave only vague assurances Nelson suspended further payments.
Nolan Nunez hired Northstar Logistics to transport goods over six months. Before any shipments began Northstar Logistics declared it would not perform because it had taken a larger contract elsewhere. Nolan Nunez immediately sued for total breach damages.
Nina Nielsen ordered equipment from Nobel Dynamics with installment payments. Nobel Dynamics missed the first delivery and then stated it would never complete the order. Nina Nielsen recovered damages measured by all remaining contract rights.
Norman Nash promised to supply rare minerals to Nova Pharmaceuticals. After a government ban made performance unlawful Norman Nash repudiated. Nova Pharmaceuticals later discovered the ban would have excused performance anyway so its damages claim was discharged.
Nonperformance gives rise to total breach 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 based on all remaining rights to performance. Factors include the extent of deprivation of expected benefit and the likelihood of cure.
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When reasonable grounds exist to believe the obligor will commit a breach by nonperformance that would support total breach damages the obligee may demand adequate assurance of due performance and may suspend its own performance until assurance is received.
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A breach by nonperformance accompanied or followed by repudiation gives rise to a claim for damages for total breach except in installment payment cases where duties are unrelated.
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Yes. When an obligor repudiates a duty before committing a breach by nonperformance 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 excused by impracticability or frustration before any breach by nonperformance occurred.
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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…