Home >> Cyclopedia-of-law-vol-4 >> Acceptance Necessary To Complete to Partners Ex Emption >> Indicated by the Method

Indicated by the Method of the Breach


INDICATED BY THE METHOD OF THE BREACH. A breach of contract may occur: (a) By a party renounc ing his liabilities under it, (b) by a party so acting as to make it impossible to fulfill his promise, (c) or by the party totally or partially failing to perform what he has promised. (Anson on Cont. 281.) (a) A party may renounce his liability under a con tract before performance is due, or in the course of performance. If he renounces it in toto before per formance is due, the other party may treat the con tract as discharged, and sue at once for a breach. So, if the party during performance refuses to perform his part, the other party is discharged from further per formance and may bring an immediate action for the breach.

(b) The action of the party which makes it impos sible for him to fulfill his promise may also be before or during performance. In either case, if one of the par ties by some positive act makes it impossible that he should perform his promise, it is such a breach of the contract as will discharge the other party, who may sue at once for the breach, and if the impossibility occurs when the contract is part performed, the plaintiff may sue also on a quantum meruit for the part done.

(c) A partial or total failure of a party to perform what he has promised without an open expression of intention to abandon his rights under the contract, may, or may not, discharge the other party. In the cases just considered the party in default by breach, has, by renunciation, or acts making it impossible for him to perform, made performance by the other party unnecessary; the breach causing a discharge of the contract as regards the party injured, nothing remains but the right of action for the breach. But where the breach results from a failure of performance by one party, the other may yet have to perform his promise under the contract, though having a right of action for the breach by the other. If the promises of the parties are independent of one another, then a breach by one party failing to perform does not discharge the other from his promise; but if the promises are conditional upon one another, the failure to perform by one will discharge the other. Hence we shall have to consider promises which are independent, and those which are conditional.

party, perform and contract