« on: April 23, 2006, 04:22:19 PM »
These three factors in analyzing the effects of a breach are making my head spin. Here's what I've got:
A material breach suspends a the nonbreaching party's duties of performance (Restatement 241). The time after which the breach leads to a discharge of the nonbreaching party's duties depends on all those factors which define a breach, plus the extent to which the delay will prevent the nonbreaching party from getting replacement performance, and any applicable time provisions in the agreement. (Rest. 242).
Now, if all of the party's duties are discharged by the breach, then the breach is total, and the nonbreaching party can sue on the entire contract. But if only part of the party's duties are discharge, the breach is partial, and the nonbreaching party still owes performance.
I'm having trouble seeing why the total/ partial breach distinction has any relevance. If a party has materially breached the contract, and time is important enough to discharge all his duties, then he can sue for breach.
If, on the other hand, the breach is immaterial, or time is of little importance, the nonbreaching party still has to perform.
So, my beef boils down to answering these questions:
1) What is the difference between an immaterial breach and a material partial breach?
2)What is the difference between a material breach which has not been cured sufficiently quickly, and a total breach?