Breach

Total Breach

Material Breach

Substantial Performance

Cant Be Cured or fixed

A Breach that is so serious that it deprives the non-breaching party of the benefit of the bargain, and thus, allows them to decline performance, terminate the contract, and sue for full expectation damages.

Partial Breach- perform but not to the full extent- what is not performed is not material

Can be sued immediately

5 Factors to determine materiality

NonBreaching Party Deprived of benefit, which was reasonably expected Adequately compensated for the part of the benefit he was deprived

Can recover for portion that was not performed or recover enough to pay someone else

Breaching Party

Suffer Forfeiture
Cure his failure, taking into account all circumstances Comports with Standards of Good Faith and Fair Dealing Expectation

Still have to pay for what is done, but not for the portion that has not be done

If disproportionate then court will adjust Stated in ContractIf you breach this is what you pay

How to Measure Damages

Reliance Restitution

Liquidated Damages

Remedies Restatement
Election of Remedies Void Contract and recover damages for the Total Breach Specific Performance
Order Parties to Perform contract Adequate Damages

UCC
Perfect Tender Rule
Specific Performance May be rendered if goals are unique or in other appropriate circumstances

Continue Contract and sue for damages related to the partial breach

Delivery
Accept Whole Reject Whole Accept/ Reject Partial

Only if adequate damages are not available

Diff. of proving damages with reasonable certainty Likelihood award of damages could not be collected

Diff. of getting reasonable substitute