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 this connection, at the risk of repetition, it may be noted that the term "party who is not in default" is used as a convenient method of indicating the party who has not committed such a default as to justify the adversary party in treating the contract as discharged. In many cases, as in breach of independent covenants,1 or in breach of subsidiary covenants,2 a party may be in default so as to incur a liability for damages, but not in default so as to justify the adversary party in treating the contract as discharged. Courts have occasionally used language which would seem to imply that every breach of a contract by one party operated as a discharge of the adversary party;3 but such a statement, while usually correct with reference to the contracts involved in the particular cases, is not a safe general proposition. While it applies to dependent covenants, such as precedent covenants,4 or to concurrent covenants;5 and while it applies to cases of total failure of consideration,6 or to partial failure of consideration if the consideration which has failed is the vital element of the contract,7 it does not apply in the case of independent covenants,8 or in the case of partial failure of consideration where the consideration which has failed is not the vital element of the contract.9 Conversely, language is sometimes used which implies that the right to treat a contract as discharged is one which can be exercised only by a party who is not himself in default.10 This statement, also, is too broad and sweeping to be safe. It applies to a party who is in default in the performance of a precedent covenant,11 and to a party who is in default in the performance of a concurrent covenant;12 but it does not apply to a party who is in default in the performance of a subsequent covenant,13 or to a party who is in default in the performance of an independent covenant.14
9 See Sec. 3023 et seq. 10 See Sec. 3036 et seq. 11 See Sec. 3061 et seq. 12See ch LXXXVII.
13 See ch. LXXXVIII.
14 See ch LXXXIX. 15 See ch. XC. 1 See Sec. 2971 et seq.
2 See Sec. 2981.
3 "It is elementary that a breach of a contract by one party excuses per-formance by the other." Wasser v. Western Land Securities Co., 97 Minn. 460, 107 N. W. 160. 4 See Sec. 2951 et seq.
5 See Sec. 2961 et seq.
6 See Sec. 2977 et seq. 7 See Sec. 2986.
8 See Sec. 2971 et seq.
9 See Sec. 2981 et seq.