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A breach of a contract occurs when any party bound by legal terms of a contract fails to perform their obligatory duty as stipulated in the terms (Diamond and Maskin, 1979). This can take place through various forms which include failure to supply services or goods as agreed upon previously. It can take two forms, which are anticipatory, or actual. The difference is that the actual breach occurs when a party refuses to perform their duties, for example, on an agreed day without pervious warning, while the anticipatory breach ensues when a party states in advance their inability to perform.
Positions taken in the paper
In this particular case involving a contractor failing to complete his work within the agreed period of time, I would classify this breach as actual because the terms and conditions that he stated to the family were to complete the work within a period of one year. Now that the job took longer than he had previously stated it was not under the terms of the contract that he would receive corresponding compensation to that effect. The contractor would take the position of the seller and on mutual agreement as per the UCC guidelines (Liuzzo, 2009). Therefore, they would be relieved of their responsibilities, depending on the existence of such a provision in the event the contractor failed to honor their terms. However, the lack of materials and under-estimation of time was a foreseeable event that would prevent them from keeping their end of the bargain.
Overvew of the scope addressed within the paper
The paper will address the viability of the contract between the family and the contractor. There are questions as to the reasons for termination of the contract, as well as why the blame would fall to a certain party. This will evaluate the party that stands to gain the most from the termination of the contract and why, so that motives of intentional foul play are clear. In addition, it discusses the elements of an enforceable contract. The contract law is enforceable to a variety of agreements arrived at on mutual legal basis and can advocate termination on the premise of performance.
Differences between Substantial and Inferior Performance
Complete performance refers to an instance where a contract entirely fulfills its obligation as agreed on under the terms. Complete performance is the yardstick for the success or failure of either of the parties in the contract and its attainment dictates whether both sides keep the end of their bargain. Substantial performance, on the other hand, is a scenario whereby due to unforeseen circumstances a contract is fulfilled with only slight omissions from precise terms (Liuzzo, 2099). It this case, the contract on the side of the builder is not substantial and neither can it be termed as complete. Therefore, it has resulted in inconveniences on the side of the owner of the house.
The rights of the non-breaching party
Under an ideal situation, both parties ought to live up to their responnsibilities. However, due to some mishaps one side may end up breaching a contract (Diamond and Maskin, 1979). In this situation, the builder is the breaching part, and according to contract law, the non-breaching party, which in this case is the family, has rights that protect them from losses or damages. The family reserves the right to terminate the contact or withhold some amount of payment. Alternatively, there are many options available to the non-breaching party when a contract is terminated. In this case, the contractor was the breaching party; therefore, the family has the right to deduct the cost of remedy agreed, or rescind the contract altogether because of the consequential damages.
However, in the event the breaching party is not willing to forego a part of the family’s promise, the family may take a court action, but only if the agreement is legal and in writing or if it is a form of memorandum as provided for by the 5th and 6th element respectively (Diamond and Maskin, 1979).
The situation is not as severe as to warrant the family to terminate the contract yet, though it may be the last resort. The contractor did not adequately calculate the needs for the job and so the family is not liable for additional payment. In this case, the problem would lie between substantial and inferior performance. The latter would be a bit harsh, as it would allow the family to rescind the contract entirely. Although it can be the only viable option, contract termination should not be the first option taken.
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