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Breach and Remedies

A breach of contract is a failure to perform the contract in the manner called for by the contract.  A party is entitled to contractual remedies if the other party breaches a contract. A breach does not always result in a lawsuit or mean the end of a contract.  One party may be willing to waive or ignore the breach.  A waiver can be made by words or by conduct.  Accepting a late payment on a note would be an example of a waiver by conduct.  It is possible to make a waiver by silence.  For example, failure to object to the manner of performance in a timely manner would be a waiver by silence.

A party who waives a breach gives up the right to damages or remedies regarding such breach, and cannot use the breach as an excuse to keep from performing the contract.

A waiver may be express or implied.  An example of an implied waiver would be accepting a defective performance without objection.  A waiver only applies to the specific matter waived.  A party is entitled to require the other party to strictly perform all other contractual obligations set forth in the contract.

A party may retain the right to recover damages caused by another party’s breach if the party expressly reserves the right to damages at the time the party accepts a defective performance.  This reserva­tion of rights should be, but does not have to be, in writing.

A contracting party is entitled to damages if the other party breaches a contract.  Generally, damages are the sum of money necessary to put a party in the same or equivalent financial posi­tion as the party would have been had the contract been performed. A party may recover compensatory damages for any actual loss that the party can prove with reasonable certainty.

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