This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In the types of breach thus far discussed, the party who breaks the contract has manifested his intention by word or deed to disregard the obligation of the contract, and no longer to recognize it as binding upon him. Breach may also exist where one party, without repudiating the contract in any way, or indicating his intention not to be bound thereby, or not to perform it, either omits performance, or tenders a performance which is not even a substantial performance of the obligation imposed upon him by the contract.1 In jurisdictions in which breach by anticipation is not recognized or is looked upon with disfavor, nonperformance is regarded as the essential fact which is necessary to establish breach.2 In England, on the other hand, language has been used which seems to indicate that the courts do not regard non-performance as such breach as will operate as a discharge of the contract, unless the party in default has renounced the contract, or unless it is shown that he is unable to perform.3 . This rule was first laid down in instalment contracts,4 and most of the cases cited in support of this rule are cases of instalment contracts,5 but the principle does not seem to be limited to instalment contracts. At the same time, the principle is applied in cases in which the facts are held to show a renunciation or an inability to perform; and any suggestion that mere non-performance is not a discharge is therefore an obiter.6 Where the contract is held not to be discharged and no renunciation is held to exist, it is doubtful if any breach is shown.7 It may be doubted if any jurisdiction will hold that the party who is not in default is bound to perform where there is a material breach of a precedent covenant or of a concurrent covenant,1 even though the party who is in default insists that he will perform, and even though he is in fact able to perform.
13 White v. School District, 159 Pa. St. 201, 28 Atl. 136.
14 Butte Land & Investment Co. v. Williams, 55 Mont. 39, 1 A. L. R 1034, 173 Pac. 550.
16 Adams v. Cook, 200 Pa. St. 258, 49 Atl. 964.
17 Milks v. Milks, 129 Mich. 164, 88 N. W. 402.
1 McPherson v. Hattich, 10 Ariz. 104, 85 Pac. 731; Hebert v. Weil, 115 La. 424, 39 So. 389; Kennedy v. Meilicke Calculator Co., 90 Wash. 238, 155 Pac.
Sec on this subject, generally, Acts of Omission as Breaches of Covenants for Title, by T. F. Martin, 23 Law Quarterly Review, 331; Liability of Bank to the Maker of a Check for the Wrongful Dishonor Thereof, by Ernest W. Huffent, 2 Columbia Law Review, 193; The Right* of Railway Passengers In Respect of Unpunctuality, by W. M. Acworth, 3 Journal of Comparative Legislation (N.S.), 31, and Compensation for Misdescription in Sales of Land, by William Webster, 3 Law Quarterly Review, 54.
See Sec. 2927 et seq.
2 McPherson v. Hattich, 10 Ariz. 104, 85 Pac. 731; Daniels v Newton, 114 Mass. 530, 19 Am. Rep. 384; Carstens v. McDonald, 38 Neb 858, 57 N. W. 757; Hixson Map Co. v. Nebraska Post Co., 5 Neb. (unoff) 388, 98 N \V. 872.
3 "But I think this case may be, and in fact has been, decided on broader lines than those laid down in the notes to Pordage v. Cole (1 Wms. Saund. 319-1), as to mutual and Independent covenants. I think the true test applicable to the facts of this case is that which was laid down by Lord Coleridge, C. J, in Freeth v. Burr (, L. R. 0. C. P. at p. 213), and approved in Mersey Steel Company v. Naylor (1884], 9 App. Cas. 434), in the House of Lords, 'that the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract' I think the court of appeal bad ample ground for drawing this inference from the conduct of the appellants here in dismissing the respondent in deliberate disregard of the terms of the contract, and that the latter was thereupon justified in rescinding the contract and treating himself as absolved from the further performance of it on his part." General Bill posting Go. V Atkinson , A. C. 118 [affirming (1908), 1 Ch. 537]. 4 See Sec. 3010.
5 See, Mersey Steel Co. v. Naylor, 9 App. Cas. 434, and Freeth v. Burr, L. R. 9 C. P. 208.
6 See discussion of this doctrine, in In re Rubel Bronze & Metal Co. and Vos , 1 K. B. 315.
7 Harrison v. Walker , 2 K. B. 459. (A quarrel between co-owners of a bungalow: held, not to discharge the contract for use in common, neither party having attempted to renounce the contract or to exclude the other, and there probably being no implied covenant that co owners of a bungalow would not quarrel)
8 See Sec. 2951 et seq.
The question of what constitutes breach turns on the answer to the questions: (1) What was the party, who is alleged to be in default, bound to do under the contract? and (2) What has he in fact done? The first question is primarily one of construction; the second, one of fact.