Breach of Contract: The Ultimate Guide

December 14, 2023 • Contract Management • 13 minutes

Have you ever wondered what action to take when an employee or vendor breaches a contract? Or maybe you’ve accidentally missed a deliverable, and wondered what steps you should take to set things right. In all these cases, a proactive approach to contract breaches makes a world of difference – and that’s exactly what we’ll show you how to achieve in this guide.

Here, we’ll explore the ins and outs of a breach of contract: a situation where a party fails to perform as stipulated in the agreement. We’ll shed light on the significance of breaches of contract in many different legal and business scenarios, and show you how to handle them.

But first, let’s start with a straightforward definition.

What is a breach of contract?

A breach of contract occurs when one party fails to fulfill their obligations as outlined in the agreement. This is known as “failure to perform.” A failure can be anything from not delivering a service or product as promised, to not paying on time or in full.

A breach of contract is a significant problem that can have a wide variety of legal and financial consequences.

Potential effects of a breach of contract:

  • Lawsuits or other legal action: A breach can lead to legal actions and disputes, often involving claims for monetary damages or specific performance to rectify the breach.
  • Damaged business relationships: Breaches often strain or sever business relationships, impacting trust and future collaborations.
  • Costly financial penalties: The breaching party may face financial liabilities due to compensatory damages or other legal costs.
  • Reputational damage: For businesses, a breach can tarnish their reputation, affecting their market standing and customer trust.
  • Operational disruptions: Particularly in cases of material breach, operations can be significantly disrupted, affecting various aspects of business functionality.
  • Contract renegotiation: A breach might lead to renegotiation of contract terms, which can be time-consuming and costly.

Elements of a breach of contract

Recognizing the elements that constitute a breach of contract is key to knowing when a breach has happened, as well as determining the appropriate course of action.

Essential Components of a Breach of Contract

Here are the essential components of a breach of contract:

  • Existence of a valid contract: A legally binding agreement must be in place. This agreement must include an offer, acceptance, consideration, and mutual consent among parties who are competent to contract.
  • Clear contractual obligations: Each party must be assigned clear and achievable obligations in the contract terms. These obligations can range from delivering services or goods to making payments.
  • Failure to perform as stipulated: A breach occurs when one party fails to fulfill their end of the bargain as per the contract’s terms. This could be a complete failure to deliver or a partial or inadequate fulfillment.
  • Resulting damage or loss: For a breach to be actionable, it usually must cause some form of damage or loss to the non-breaching party. This can be financial loss, loss of opportunity, or other measurable detriments.

Each of these elements plays a crucial role in defining a breach of contract, and sets the foundation for possible legal remedies or negotiations for resolution.

Types of breaches of contract

Contract breaches can occur in almost every area of life, from apartment rentals to corporate partnerships. Let’s take a closer look at the four categories of breaches, and explore some specific examples of each of them.

Types of Breach of Contract

Below are the four common types of contract breaches, along with examples.

1. Material breach

A material breach of contract is a significant failure to perform under the terms of the contract, which fundamentally undermines the agreement’s intent. It typically allows the non-breaching party to terminate the contract and seek damages.

  • Example 1 – Construction: A construction company fails to complete a building project by the agreed-upon deadline, causing significant financial loss to the client. This is a material breach, because the construction company’s failure has undermined the contract.
  • Example 2 – Software: A software vendor doesn’t deliver key features promised in a software development contract, rendering the software ineffective for the client’s needs. This is a material breach, because the vendor has failed to perform their contractual duties.

2. Minor (or partial) breach

This type of breach occurs when the failure to perform is less significant and does not completely derail the purpose of the contract. The non-breaching party cannot terminate the contract but can seek damages for the specific part not fulfilled.

  • Example 1 – Food service: A caterer delivers the food late for a corporate event, but the quality and quantity remain as agreed. This is a minor (or partial) breach, because the caterer did deliver the food, but not at the agreed-upon time.
  • Example 2 – Digital content: A freelance graphic designer submits part of a presentation on time, but misses minor components that don’t significantly impact the overall project. This is a minor (or partial) breach, because the freelancer’s mistake didn’t derail the contract.

3. Anticipatory breach

An anticipatory breach of contract happens when one party indicates, in advance, that they will not fulfill their contractual obligations. The non-breaching party can take action before the actual time of performance is due. They may terminate the contract and seek damages immediately.

  • Example 1 – Procurement: A supplier informs a retailer in advance that they won’t be able to deliver office supplies on the specified date. This is an anticipatory breach, because the supplier took action to let the retailer know about the breach in advance.
  • Example 2 – Event planning: An event organizer announces they will cancel an event weeks before the due performance, breaching the entertainment contract. This is an anticipatory breach, because the event organizer announced the breach beforehand.

4. Fundamental (or actual) breach

A fundamental or actual breach occurs when a party definitively fails to perform their part of the contract on the due date or performs inadequately. This breach allows for immediate legal recourse or other remedies, as specified in the contract.

  • Example 1 – Real estate: A tenant stops paying rent on their apartment, violating the lease agreement. This is a fundamental (or actual) breach, because the tenant has directly broken the terms of the contract.
  • Example 2 – Consulting: A consulting firm fails to provide the agreed-upon consultation services by the contract’s due date. This is a fundamental (or actual) breach, because the consulting firm is in violation of the agreed-upon terms.

As you can see, contract breaches vary widely in their nature and impact, from significant disruptions in material breaches to less severe but still impactful minor breaches. Anticipatory and actual breaches, meanwhile, occur in scenarios where the breach is either forewarned or happens at the moment of performance.

What do you do after a breach of contract?

As soon as you notice a breach of contract, it’s crucial to take immediate practical steps to address the problem.

Here’s a step-by-step guide on what to do in case of a breach of contract:

Document the breach

Gather all relevant documents related to the contract, including the original agreement, any amendments, and correspondences related to the breach. Document the specific nature of the breach, noting dates, actions taken, and any failures to perform as per the contract terms.

Collect evidence

Compile evidence that supports the breach claim. This can include emails, letters, digital contract drafts, proof of payments, or delivery slips. Record any losses or damages incurred due to the breach, including financial losses, extra costs, or lost opportunities.

Communicate with the other party

Notify the other party of the breach formally. This should be done in writing, clearly stating the nature of the breach and referencing the specific contract clauses involved. Seek to understand their perspective and open a dialogue for potential resolution.

Seek legal advice

Consult with a legal professional to understand your rights and options. This is crucial for complex breaches or where significant losses are involved. A lawyer can provide guidance on the viability of legal actions and the potential outcomes.

Consider resolution outside of court

Explore alternative dispute resolution methods like mediation or arbitration, which can be more cost-effective and quicker than court proceedings. Assess if renegotiating the contract terms or reaching a settlement is possible and in your best interest.

Taking these steps will help you proactively manage a breach of contract situation, and seek a peaceful resolution while also laying the groundwork for any necessary legal action.

How do you file a breach of contract lawsuit?

Filing a lawsuit for a breach of contract involves taking a series of legal steps, beginning with gathering the necessary documentation. You’ll also want to talk to a legal professional in advance.

Here’s a step-by-step guide to filing a breach of contract lawsuit:

Gather and prepare documentation

Compile all relevant documents, including the contract, any amendments, correspondences related to the breach, and evidence of damages incurred.

Organize these documents chronologically to present a clear narrative of how the breach occurred and its impact.

Consult with an attorney

Seek legal counsel to understand the strength of your case and the potential outcomes. An attorney can advise on the merits of your case and the appropriate jurisdiction for filing the lawsuit.

Your attorney will help draft the legal complaint, ensuring it accurately represents the facts and adheres to legal standards.

File a complaint

The complaint, which initiates the lawsuit, will detail your allegations against the breaching party, specifying how the contract was breached and the damages sought. Here’s a Notice of Breach of Contract template to get you started.

File the complaint in a court that has jurisdiction over the case. This involves paying a filing fee and following specific court procedures.

Litigate in court if necessary

After filing, the defendant will be served with the complaint and given a chance to respond. The litigation process may involve pre-trial motions, discovery (exchange of evidence), and possibly settlement negotiations.

If the case goes to trial, both parties will present their arguments, evidence, and witnesses. The judge (or jury, in some cases) will then make a ruling.

What to expect in court when you file a breach of contract lawsuit

Litigation can be time-consuming and costly, so be prepared for a process that can last several months or even years. Expect a lengthy series of court proceedings and meetings, including case management conferences, hearings, and potentially, the trial itself. The outcome of a court case can be unpredictable, so it’s essential to weigh the risks and potential rewards before you litigate.

As you prepare to file and pursue a breach of contract lawsuit, it’s important to have realistic expectations about the process and the potential outcomes. Even if a judge rules in your favor, it will likely take considerable time before you’re compensated for your loss. So plan ahead, and be ready to ride out a lengthy litigation period if necessary.

Remedies for a breach of contract

When a breach of contract occurs, you can pursue a variety of different legal remedies to compensate you for your loss. The choice of remedy often depends on the nature of the breach and the resulting damages.

Below are four common legal remedies you might seek for a breach of contract.

1. Damages

When you seek damages, you’re seeking direct compensation for a loss you suffered due to the other party’s failure to perform. Here are some types of damages you might seek:

  • Compensatory damages: Aimed at compensating the non-breaching party for the loss resulting from the breach. This includes direct losses and lost profits.
  • Punitive damages: Rare in contract law, these are intended to punish the breaching party for egregious behavior and deter similar actions in the future.
  • Nominal damages: Symbolic compensation awarded when a breach is proven, but no actual financial loss is demonstrated.
  • Liquidated damages: Predetermined damages specified within the contract itself, applicable when actual damages are difficult to quantify.

2. Specific performance

This remedy involves the court ordering the breaching party to perform their obligations as outlined in the contract. It’s typically used when monetary damages are inadequate, such as in real estate transactions.

3. Cancellation and restitution

Cancellation nullifies the contract, relieving all parties of their obligations. Restitution aims to restore the non-breaching party to the position they were in before the breach. This remedy is common when the contract terms are unfair or when a party has been misled.

Determining remedies

The selection of a remedy depends on the breach’s specifics, the contract terms, and the parties’ unique situation. Courts consider factors like the type of breach, the resulting harm, whether the breach was willful, and the contract’s nature in deciding the appropriate remedy.

Consult with your lawyer to decide on which remedy you can most effectively pursue, so you can decide on the most useful course of action following a breach and – and draft contracts with effective protective measures in mind.

How can you avoid a breach of contract?

You can avoid a breach of contract by proactively managing agreements and ensuring clear understanding and adherence to the terms by all parties involved.

Here are six key tactics for preventing contract breaches:

  • Draft clear contracts: Make sure the contract language is clear, unambiguous, and comprehensive. Clearly define the scope, contractual obligations, and expectations for all parties.
  • Review contracts regularly: Periodically review your agreements to ensure ongoing contract compliance and relevance. This is especially important for long-term agreements or those affected by changes in law or business circumstances.
  • Maintain effective communication: Keep open lines of communication with all parties involved in the contract. Address any ambiguities or changes in circumstances promptly to prevent misunderstandings.
  • Document diligently: Keep thorough documentation of all communications and amendments related to the contract. This can serve as evidence of compliance and intent if a dispute arises.
  • Implement risk management techniques: Identify potential risks and incorporate terms in the contract to mitigate these risks. This includes having contingency plans for unforeseen events.
  • Use contract management tools: Leverage contract management software to track obligations, deadlines, and compliance. These tools can provide reminders and automate parts of the contract management process.

By adopting these practices, you can significantly reduce the risk of contract breaches, and protect yourself against potential losses if and when a breach takes place.

Conclusion: Prevention is the most effective cure for a breach of contract

By engaging in clear contract drafting, regular reviews, effective communication, and leveraging contract management tools, you can significantly mitigate the risk of breaches. And that’s really the most cost-effective approach: to prevent them before they happen.

Proactive contract administration can go a long way toward that goal. It not only helps prevent legal disputes, but also fosters strong, trust-based business relationships. So stay informed, stay prepared, and craft your contracts with effective breach resolution in mind.

Manage your agreements effortlessly with Concord. 

Try for free

Create, collaborate, negotiate, e-sign, manage, and analyze all agreements on one platform.

See what Concord can do for you.

Book a demo