This page is continued from the Civil Law Self-Help Walkthrough >>>> Section 1; Torts, Breaches of Contract, and Assessing Liability:

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    Besides torts, civil suits can also be filed in cases of contract breaches.  Also see our section on contracts and types of contracts.

breach of contract:
( 17c)

1. Violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance. [1]

1. A failure without legal excuse to perform any promise which forms a whole or a part of a contract, including the refusal of a party to recognize the existence of the contract or the doing of something inconsistent with its existence.  National City Bank v Erskine & Sons, 158 Ohio St 450, 49 Ohio Ops 395, 110 NE2d, 598; a nonperformance of any contractual duty or immediate performance; the breach may be total or partial, and may take place by failure to perform acts promised, by prevention, or hindrance, or by repudiation. Restatement; Contracts § 312. [2]

1. Failure, without legal excuse, to perform any promise that forms a whole or a part of a contract, including the doing of something inconsistent with its terms. [3]

     Excerpt from Grover Cleveland Grismore’s Principles of the Law of Contracts (John Edward Murray Jr. ed.; 1965):

     “It is a rule, generally accepted, that when a promisor fails in any respect to carry out an existing duty calling for a present, immediate performance under a contract, he is guilty of a breach of contract which furnishes a basis for a cause of action of some sort.  This is so, whether the present duty of performance which has been violated comprises the whole duty or only an infinitesimal part of what will ultimately be due, and whether or not any loss has been caused by such failure to perform as has occurred.  As to these matters there is no cause for doubt.  The questions of difficulty in this connection grow out of three related matters.  These questions are:

(1) whether a cause of action ever exists when, as yet, there has been no failure to carry out an immediate duty of present performance;
(2) what kind of relief is available when a cause of action admittedly exists; and
(3) whether, when the contract is one in which the performance called for by its terms is not to be rendered all at once,

a partial though substantial breach is, for purposes of remedy, to be treated as the equivalent of a breach of the whole contract, thus giving the promisee, if he elects to sue for damages for breach of contract, the right to recover, in one action, prospective as well as actual losses; or whether each new failure to perform, as the later performances come due, is to be treated as the basis of a new and distinct cause of action.” [2]

     Excerpt from Restatement (Second) of Contracts 5 236 cmt. a (1979):

     “A breach may be one by non-performance, or by repudiation, or by both.  Every breach gives rise to a claim for damages, and may give rise to other remedies. Even if the injured party sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has at least a claim for nominal damages.  If a court chooses to ignore a trifling departure, there is no breach and no claim arises.” [4]

active breach of contract: (1840) Civil law. The negligent performance of a contractual obligation, to the point of acting outside the contract’s terms.  *  Under Louisiana law before 1984, active breach of contract was contrasted with passive breach of contract, which was a failure to perform the obligations created by the contract.  Unlike a passive breach, an active breach of contract could give rise to a claim in contract and in tort.  The distinction was abolished in 1984.

immediate breach: (1820) A breach that entitles the nonbreaching party to sue for damages immediately.

• anticipatory breach – a breach of contract caused by a party’s unequivocal indication that the party will not perform when performance is due; the nonbreaching party may elect to treat the repudiation as an immediate breach and sue for damages.

continuing breach: (1817) A breach of contract that endures for a considerable time or is repeated at short intervals.

efficient breach: (197 7) An intentional breach of contract and payment of damages by a party who would incur greater economic loss by performing under the contract.  See EFFICIENT-BREACH THEORY.

total breach – a breach of contract which goes to the whole consideration, for which the remedial rights provided by law are substituted for all the existing contractual rights, or can be so substituted by the injured party, who becomes entitled to sue for damages.

• material breach – a breach of contract sufficiently substantial to give the injured party the right to rescind the contract or to maintain an action for damages, or both.

partial breach: (18c) A breach of contract that is less significant than a material breach and that gives the aggrieved party a right to damages, but does not excuse that party from performance; specifically, a breach for which the injured party may substitute the remedial rights provided by law for only part of the existing contract rights.

passive breach of contract: (1832) Civil law. A failure to perform the requirements of a contract.  *  Under Louisiana law up to 1984, passive breach of contract was contrasted with active breach of contract, which was negligence in performing a contractual obligation.  While an active breach of contract could give rise to claims in contract and in tort, a passive breach of contract usually did not give rise to a tort claim.

repudiatory breach: (1967) A breach so fundamental that it permits the nonbreaching party to terminate without penalty any reciprocal performance or obligation. — aka fundamental breach.

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Other Types of Breaches:

breach of covenant – violation of an express or implied promise, usually in a contract; a duty to either to do or not do an act.

• covenant – a formal agreement or promise, usually in a contract or deed, to do or not do a particular act; a compact or stipulation.

breach of duty – (16c) The violation of a legal or moral obligation; the failure to act as the law obligates one to act; esp., a fiduciary’s violation of an obligation owed to another.  See NEGLIGENCE.

breach of duty of care – (1925) Negligence that results in a foreseeable injury that would not have occurred but for the negligent person’s actions; NEGLIGENCE (1). -Some times shortened to breach of care.

breach of injunction – (18c) A violation of the terms of a court’s injunctive order.  *  A breach of injunction is often treated as a civil contempt of court.

breach of loyalty – (16c) An act that is detrimental to the interests of someone to whom a fiduciary duty is owed; esp., an act that furthers the actor’s own interests or those of a competitor of the beneficiary.

breach of peace – See BREACH OF THE PEACE.

breach of prison – See PRISON BREACH.

breach of promise – (17c) The violation of one’s word or undertaking, especially a promise to marry.  *  Under English common law, an engagement to marry had the nature of a commercial contract, so if one party broke the engagement without justification, the innocent party was entitled to damages.  See HEARTBALM STATUTE.

breach of statutory duty – (1844) The violation of an obligation imposed legislatively, esp. one for the protection or benefit of a particular class of persons; a failure to carry out or fulfill obligations imposed by legislation.

or inadvertent. I A breach of trust subjects the trustee to removal and creates personal liability. 2. See MALADMINISTRATION.

breach of warranty – (18c) 1. A breach of an express or implied warranty relating to the title, quality, content, or condition of goods sold. UCC §§ 2-312 through 2-315. 2. Insurance. A breach of the insured’s pledge or stipulation that the facts relating to the insured person, thing, or risk are as stated.  See WARRANTY (3). [1]