A breach of contract is a failure, without legal excuse, to perform any promise that forms all or part of the contract. This includes failure to perform in a manner that meets the standards of the industry or the requirements of any expenses express warranty or implied warranty, including the implied warranty of merchantability.
Generally speaking, a breach of contract winds up in court because someone believes the other party did not meet the terms of the contract. In a perfect world, those terms would be spelled out specifically in writing. However, some contracts are verbal … maybe a few spoken words and a handshake. While the courts uphold verbal contracts, we often get into a sticky “he said/she said” situation that is not easily resolved.
These “breaches of contract” may include being late without an excuse, failing to deliver all of the goods, substituting inferior or significantly different goods, not providing a bond when required, not completing a job, or not paying in full or on time.
If you are considering a breach of contract lawsuit, read the following questions and answers:
Did a contract exist?
A contract exists when there is an offer and an acceptance of that offer. Written contracts are preferred, but most oral contracts are legally binding. However, some state laws require contracts dealing with real property to be in writing.
What did the contract require from each of the parties?
A contract should clearly state the specifics of what each party is going to do and when they are going to do it. Again, an oral contract can be binding but it’s a much better idea to get everything in writing.
Did a breach of contract occur?
A breach of contract occurs when one party fails to perform an obligation set forth from a valid offer and acceptance. Disputes often arise regarding the quality and timeliness of performance, whether certain conditions were required before the obligation existed, or whether the contract was even valid.
Was the breach material to the contract?
A material breach becomes a lawsuit when the injured party seeks damages and may require the advice and consultation of an experienced contract attorney. An immaterial breach may be resolved between the parties without legal action and does not kill the contract.
What types of damages were caused by the breach?
- Nonperformance – failing to fulfill an obligation under a contract; a breach of contract is always a nonperformance of duty, but not all nonperformance of duty is a breach of contract.
- Impossibility of performance – an unexpected circumstance has made it impossible to fulfill the contract.
- Breach of Implied Duty – legal duties may be created when a contract is made that the parties did not expressly or specifically state in the contract.
- Anticipatory Breach – occurs when one party decides before a performance is due to not take the action promised and communicates this decision to the other party.
- The second party can then sue for anticipatory breach of contract before the time for performance is due.
If you are considering a breach of contract lawsuit, contact Barton Law today.