Written by attorneys · grounded in primary & secondary sources — see below
A material breach of contract that substantially impairs the value of the remaining performance and justifies the injured party in treating the contract as ended. It gives rise to a claim for damages measured by all of the injured party's remaining rights to performance rather than only the portion already due.
Sources & Authorities
How it applies
Common Examples
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Shipping Charter Nonperformance
Oceanic Shipping chartered a vessel to Prairie Grain Exports for ten grain voyages. After completing only two voyages Oceanic failed to present the vessel for three scheduled loadings and offered only indefinite repairs. Prairie Grain hired substitute vessels and sued for damages covering all remaining voyages. The nonperformance substantially impaired the value of the charter and discharged Prairie Grain's remaining duties, allowing recovery based on the full set of unperformed voyages.
Installment Parts Delivery Failure
Nova Precision agreed to supply Alpha Metal with 10,000 parts in four quarterly installments. Nova delivered the first installment but then shifted its production line and stated it could not meet the remaining schedule on the original terms. Alpha Metal treated the contract as ended and sued for damages on all undelivered parts. The complete failure to deliver the second installment combined with the statement of inability substantially impaired the value of the entire agreement and supported a total breach claim.
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Restatements
Casebooks
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Dictionaries
Pre-Performance Repudiation
Continental Livestock contracted to supply Allied Harvest with monthly corn deliveries from April through October. Before any deliveries were due Continental's president stated that production problems made future performance impossible on the agreed schedule. Allied Harvest immediately arranged substitute purchases and sued for damages on the entire season. The repudiation before any performance occurred gave rise to an immediate claim for damages based on all remaining rights to performance.
Statement of Future Inability
Harvest Catering agreed to provide all meals for a three-day conference hosted by Apex Events. On the morning performance was due Harvest failed to appear and texted that its kitchen fire made it unable to provide any services. Apex hired replacement caterers and sued for the full cost of the event. The affirmative statement that Harvest would not perform created a claim for damages measured by all of Apex's remaining contractual expectations.
Impracticability After Repudiation
Tidal Energy contracted to supply equipment to True North Logistics for a remote project. Tidal repudiated before any performance was due by announcing it would not deliver. After the repudiation a government embargo made performance impossible for both parties. True North's duty to pay damages for total breach was discharged because the repudiated duty would have been excused by impracticability before any nonperformance occurred.
Landlord Breach of Lease Promise
Harborfront Centers leased a storefront to ModaLane and promised to install a glass façade and full-height display windows by the opening date. On the opening date the storefront remained boarded up with only a narrow entrance. ModaLane vacated after repeated demands for cure and sued for damages based on lost visibility and sales. The landlord's material failure to deliver the promised storefront features justified treating the lease as ended and recovering damages for all remaining expectations under the lease.
Javins v. First National Realty Corp.428 F.2d 1071 (D.C. Cir.), cert. denied, 400 U.S. 925 (1970)
Common questions
Frequently Asked
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What distinguishes a total breach from a partial breach?+
A total breach occurs when the nonperformance is material and substantially impairs the value of the contract, discharging the injured party's remaining duties and allowing recovery of damages for all remaining rights to performance. A partial breach supports only damages for the portion already due and does not excuse further performance by the injured party.
Supporting sources
Does a repudiation before performance is due create a claim for total breach?+
Yes. When a party repudiates a duty before committing a breach by nonperformance and before receiving the full agreed exchange for it, the repudiation alone gives rise to an immediate claim for damages for total breach.
Supporting sources
When does a breach by nonperformance in an installment contract qualify as total?+
A breach by nonperformance in an installment contract gives rise to total breach damages only if 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 based on all remaining rights to performance.
Supporting sources
Can a duty to pay damages for total breach by repudiation be discharged?+
Yes. The duty is discharged if it later appears that the repudiated duty would have been excused by impracticability or frustration before any breach by nonperformance occurred.
…forthwith. On the other hand, if the jury determines that the entire rental obligation has been extinguished by the landlord’s total breach, then the action for possession on the ground of nonpayment must fail.[^maj-65] The jury may find that part of the tenant’s rental obligation has been suspended but that part of the unpaid…
ContractsContract content and meaning · Parol evidenceUBEIntermediate