Contract disputes and how to avoid them – Part 3

This post is the third in an 6 part series on contract disputes. If you haven’t already read parts 1 and 2, I recommend you do before continuing.

Material vs. Non-Material Breach of Contract (continued)

Did the breaching party act in bad faith?

If the breaching party willfully broke the contract, or if the breach resulted from deceit, unfair dealing, or fraud, then the court will likely find the breach material. On the other hand, if the breach was due to circumstances beyond the control of the breaching party, the court will be less likely to find the breach material.

Is the non-breaching party ready, willing, and able?

In order for a breach of contract to be material, the non-breaching party must either have already performed their obligations under the contract, or be ready, willing, and able to do so.

Does the contract have provisions for material breach?

Some contracts will specify what constitutes a material breach. Of course, if you’re dealing with a breach of contract, it’s a good idea to read the entire contract again.

Anticipatory breach or repudiation

Check back soon for All about contract disputes – including how to avoid them, part 4. In the meantime, check out our page on contract disputes.