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Contracts • Excuse of Non-Performance
K#124
Legal Definition
If a promisor has an absolute duty to perform, and fails to perform, this failure amounts to a breach of the contract. The non-breaching party must show that she is willing and able to perform.
Plain English Explanation
When two parties enter into a contract, they are both bound and obligated to perform. However, when one party fails to hold up their end of the bargain, the law doesn't require the non-breaching party to fulfill their obligation to perform. Instead, the non-breaching party is excused from performance.
Hypothetical
Hypo 1: Bob's birthday is coming up. Amy wants to surprise him by writing "Happy Birthday, Bob!" in the sky. Sam runs a skywriting service. Amy offers to pay Sam $200 if Sam writes "Happy Birthday, Bob!" above Bob's house on his birthday. Sam agrees. On the day of Bob's birthday, Sam writes, "Happy Birthday, Ron!" above Bob's house. Result: Sam performed under the contract, but his performance was improper. In fact, it was so incorrect that it is basically the same as if he had failed to write anything at all in the sky. As such, Amy is excused from her obligation to pay.
Visual Aids
Related Concepts
How is performance affected when the subject matter of the contract is damaged or destroyed?
Under common law, is late performance a material breach?
Under common law, when is counter-performance excused?
Under common law, when may a breaching party recover in a divisible contract?
Under contract law, what is a modification?
What is excuse due to anticipatory repudiation?
What is frustration of purpose?
What is impracticability?
What is the doctrine of impossibility?
What level of compliance is required to satisfy an express condition?
What options does the non-breaching party have in response to an anticipatory repudiation?
