Though breach to any extent of any promise in a contract 8 gives rise to a cause of action, it has already appeared9 that a slight breach will not necessarily end further duties of the injured person for the performance of the contract. In spite of a slight breach a promisor may be able so nearly to fulfil the terms of his promise that the just way to deal with the situation is to hold the promisor liable merely for the defect in the performance and not to regard the contract as terminated and as being transformed into a right of action entitling the injured party to recover damages equal in value to the whole performance of the contract.10

In a unilateral contract for the performance of several disconnected acts, or for the payment of several sums in instalments, a breach as to one or any number less than the whole of the instalments is generally partial.11 In a unilateral contract for one continuing performance or in a bilateral contract not yet wholly performed on either side, whether a breach is total or partial is necessarily a question of degree. Until the breach is of sufficient importance it is impossible that it should operate as a transformation of the whole contract into a right of action for damages. Moreover, even after the breach has become of great importance, the injured party may consent to accept further performance from the wrongdoer and thereby restrict his right of action to a right to recover compensation for defective partial performance rather than for total performance.

8See, e. g., Taylor v. Laird, 1 H. A N. 273; Miteke v. Steiner Mantel Go.. 103 Md. 236, 249, 63 Atl. 471, 5LR, A. (N. S.) 1106, 115 Am. St Rep. 364.

9 See Sec.Sec.812 et seq.

10In the early law it seems that any breach of contract justified an action for the value of the whole performance to be rendered. Rudder v. Price, 1 H. Bl. 547; Bush v. Stowell, 71 Pa. 208. This was on the theory that the plaintiff was entitled to everything promised him, and a failure in any respect made performance altogether impossible.

11 Green v. Petersen, 218 N. Y. 280, 112 N. E. 746. See infra, {2024.