American Film Z Guide Reference

QUICK LESSON IN BREACH OF CONTRACT

This quick summary is being sent as a memorandum to support other attorneys in understanding what a breach of contract is. Please carry on to contact us with your questions or issues. This analysis is what we use in our offices when we approach any breach of contract case. The parts for breach of contract are strictly construed. It is of the utmost importance that you do not skirt around the parts when analyzing your client’s case.

ELEMENTS OF A BREACH OF CONTRACT

1) INITIAL INFORMATION

In a breach of contract action, the plaintiff will have to plead the existence of a contract and it is terms that establish the obligation at issue. The complaint must indicate on it is face whether the contract is written, oral, or implied by conduct. If the action is based on an alleged breach of a written contract, the terms ought to be set out verbatim in the body of the complaint, or a copy of the written contract ought to be attached to the complaint and integrated by reference.

2) PLAINTIFF’S PERFORMANCE OR EXCUSE FOR NON-PERFORMANCE

The plaintiff will have to prove that he has fulfilled his obligations and complied with any and all conditions and agreements of the contract that he is required to perform. If plaintiff was unable to carry out because defendant prevented him from doing so, plaintiff ought to allege such pardon for non-performance in the complaint.

3) DEFENDANT’S BREACH

A breach is specified as defendant’s unjustified or unexcused failure to perform. BAJI 10.85(3). The plaintiff ought to plead the facts constituting the breach in unequivocal language.

4) RESULTING DAMAGE

Any breach, total or partial, which causes a measurable injury, gives the injured party a right to compensatory damages.

SO WHAT HAPPENS WHEN YOU CAN PROVE THE ABOVE ELEMENT AND IT CAN BE CONCLUDED THAT THERE IS A BREACH OF CONTRACT?

Answer:

Generally, Compensatory Damages – the measure of damages for breach of contract is the amount which will recompense plaintiff for all detriment proximately caused by the breach or which, in the general course of things, would be likely to result from the breach.

Other components that need to be considered are:

o Certainty – damages ought to be distinctly ascertainable in both nature and origin; but the fact that amount of harm is not susceptible of precise proof or is uncertain, contingent, or difficult to make sure does not in and of itself bar recovery.

o Restoration – damages for breach of contract ordinarily include all amounts necessary to place plaintiff in same position as if breach had not occurred.

o Lost Profits – Note future profits may be recovered to extent they may be approximated with reasonable certainty; lost profits are recoverable to extent they are natural and the direct consequence of the breach.

o Rescission and Restitution – rescission and restitution are substitute remedies in action for damages where there has been repudiation or material breach of a contract, transfer of distinguishable goods is involved, other remedies are inadequate, subject of contract still exists and interests of innocent purchasers for value and defendant’s creditors will not be unjustly affected.

o Specific Performance – Note: specific performance is granted only when cash damages are inadequate.

o Real Property – specific performance is given in land sale contracts on the assumption that each piece of property is distinguishable and cash damages are consequently inadequate.

o Injunction (Very Limited Availability) – injunctive relief is largely within discretion of the trial court, taking into account inadequacy of damages to plaintiff, as well as injure to defendant.

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Paul P. Cheng, Esq.

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