| 释义 |
breach of contract
An actual failure by a party to a contract to perform his obligations under that contract or an indication of his intention not to do so. Performance is strictly assessed and only if failure to perform is so trivial that there is no effect whatsoever upon performance as a whole does this not count as a breach (a de minimis exception). An indication that a contract will be breached in the future is called repudiation or an anticipatory breach, and may be either expressed in words or implied from conduct. Such an implication arises when the only reasonable inference from a person’s acts is that he does not intend to fulfil his part of the bargain. For example, an anticipatory breach occurs if a person contracts to sell his car to A, but sells and delivers it to B before the delivery date agreed with A. The repudiation of a contract entitles the injured party to treat the contract as discharged and to sue immediately for damages for the loss sustained. The same procedure applies to an actual breach if it amounts to breach of a condition (sometimes referred to as fundamental breach) or breach of an innominate term when the consequences of breach are sufficiently serious. In either an anticipatory or actual breach, the injured party may, however, decide to affirm the contract instead. When an actual breach amounts to breach of a warranty, or breach of an innominate term and the consequences of breach are not sufficiently serious to allow for discharge, the injured party is entitled to sue for damages only. However, most commercial agreements provide a right to terminate the agreement even when the breach is minor, thus overriding the common law principle described here. If performance depends on cooperation with the other party and they fail so to cooperate, then there is no actionable breach of contract, as there was a tender of performance. The process of treating a contract as discharged by reason of repudiation or actual breach is sometimes referred to as rescission or repudiation, but this latter term is confusing. Other remedies available under certain circumstances for breach of contract are an injunction and specific performance. See also inducing breach of contract. |