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 discussing the topic of breach a strict adherence to logical arrangement would require a consideration of the facts which amounted to breach, followed by a consideration of the effect of breach. As far as economy of space permits, these questions will be taken up in this order, although the constant necessity of distinguishing between broach as a cause of action to recover damages, and breach as a discharge of the party who is not in default, will require a consideration of the effect of each of the different types of breach in connection with the consideration of the nature of such type of breach. The different methods by which a contract may be broken will first be considered, including the effect of renunciation before performance is due;1 renunciation when performance is due;2 the voluntary creation of impossibility of performance by one of the parties to the contract;3 and breach by nonperformance.4 The question of non-performance involves, however, the question of performance; and as this has been discussed already,5 it will not be repeated in connection with breach. In like manner the subject of tender, which has already been considered,6 will not be taken up in detail in connection with breach, although the effect of tender is frequently to put in default the party to whom tender is made and who refuses it; and in other cases its effect is to save the party who has made the tender from being in default. The relation of the various covenants of a contract to one another will then be considered;7 especially with reference to the breach of one of such covenants as a discharge of the others. The relation of the various covenants to the contract as a whole will then be taken up,8 including the question of failure of consideration and the problems arising out of entire and severable contracts. The effect of breach,9 and waiver of breach, both as a cause of action to recover damages,10 and as a method of discharging the contract,11 will then be discussed. Other topics which grow out of breach, such as damages,12 the right to ignore the contract on its discharge and to recover on the theory of quasi contract,13 the right to enforce the contract in equity by the affirmative remedy of specific performance,14 and the right to enforce it negatively in equity by the remedies of injunction, rescission and cancelation,15 will be reserved for subsequent chapters.
7 See Sec. 2881 et seq. 8 See Sec. 2885
1 See Sec. 2881 et seq
2 See Sec. 2908 et seq. 3 See Sec. 2912 et seq.
4 See Sec. 2926 et seq
5 See ch. LXXX.
6 See ch I.XXXIII.
7 See Sec. 2911 et seq.
8 See Sec. 2077 et seq.