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Am Jur 2d - Contracts § 669

VI. Performance or Breach, F. Excuses for Nonperformance, 5. Act or Breach by Adverse Party, a. When Breach Excuses Performance, § 669 - Definition of breach; performance excused or not excused

When performance of a duty under a contract is due, a failure to perform is a breach.[1]


The word "breach," as applied to contracts, is defined as a failure without legal excuse to perform any promise that forms a whole or a part of a contract, including the refusal of a party to recognize the existence of the contract or a party's act that is inconsistent with its existence.[2]

A party who has brought about a breach of contract may not insist upon its performance,[3] and thus, a breach of contract caused solely by one party's behavior is generally excused as to the other party.[4] However, a party is not automatically excused from performing in the future every time the other party breaches.[5] Only where one party substantially breaches a contract does the other party to it have a defense and an excuse for nonperformance.[6]

The Restatement provides that a party's failure to render or to offer performance may affect the nonbreaching party's duties under the rules dealing with remaining duties to perform[7] and simultaneous exchange of performances,[8] even though that failure is justified by the nonoccurrence of a condition.[9] However, this rule[10] does not apply if the other party assumed the risk that he or she would have to perform in spite of such a failure.[11]

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1   Restatement Second, Contracts § 235(2) .
 The failure to perform at the time stated in the contract establishes an immediate breach. Franconia Associates v. U.S., 536 U.S. 129, 122 S. Ct. 1993, 153 L. Ed. 2d 132 (2002) .

2   Magnusson Agency v. Public Entity Nat. Company-Midwest, 560 N.W.2d 20 (Iowa 1997) ; National City Bank of Cleveland v. Erskine & Sons, 158 Ohio St. 450, 49 Ohio Op. 395, 110 N.E.2d 598 (1953) .

3   Williams Const., Inc. v. Wehr Const., L.L.C., 403 S.W.3d 660 (Mo. Ct. App. S.D. 2012) ; Fitzgibbons Boiler Co. v. National City Bank of New York, 287 N.Y. 326, 39 N.E.2d 897 (1942) ; Seneca Resources Corp. v. S & T Bank, 2015 PA Super 181, 122 A.3d 374 (2015) ; CCD, L.C. v. Millsap, 2005 UT 42, 116 P.3d 366 (Utah 2005) .

4   Hometown Financial, Inc. v. U.S., 409 F.3d 1360 (Fed. Cir. 2005) ; Arkansas Realtors Ass'n v. Real Forms, LLC, 2014 Ark. 385, 442 S.W.3d 845 (2014) ; Diversified Foods, Inc. v. First Nat. Bank of Boston, 605 A.2d 609, 17 U.C.C. Rep. Serv. 2d 1028 (Me. 1992) ; Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436, 689 N.E.2d 774 (1998) ; Soderbeck v. Center for Diagnostic Imaging, Inc., 793 N.W.2d 437 (Minn. Ct. App. 2010) ; FPL Energy Upton Wind I, L.P. ex rel. Electric Utility Dept. v. City Of Austin, 240 S.W.3d 456 (Tex. App. Amarillo 2007) .

5   SUFI Network Services, Inc. v. U.S., 105 Fed. Cl. 184 (2012) ; LAD Services of Louisiana, L.L.C. v. Superior Derrick Services, L.L.C., 167 So. 3d 746 (La. Ct. App. 1st Cir. 2014) , writ not considered, 162 So. 3d 392 (La. 2015) ; Management Computer Services, Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 557 N.W.2d 67 (1996) .

6   Lepi Enterprises, Inc. v. National Environmental Service Corp., 440 F.3d 937 (8th Cir. 2006) ; LAD Services of Louisiana, L.L.C. v. Superior Derrick Services, L.L.C., 167 So. 3d 746 (La. Ct. App. 1st Cir. 2014) , writ not considered, 162 So. 3d 392 (La. 2015) ; Accadia Site Contracting, Inc. v. Erie County Water Authority, 115 A.D.3d 1351, 983 N.Y.S.2d 387 (4th Dep't 2014) .
 As to what is a material breach, see §§ 670 , 671 .

7   Restatement Second, Contracts § 237 .

8   Restatement Second, Contracts § 238 .

9   Restatement Second, Contracts § 239(1) .

10   Restatement Second, Contracts § 239(1) .

11   Restatement Second, Contracts § 239(2) .

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