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CHAPTER 17

Breach and Repudiation

§17.1 THE SCOPE OF THIS CHAPTER: NONFULFILLMENT OF A PROMISE

Chapter 16 drew the distinction between the nonfulfillment of a condition, which excuses the conditional performance, and the failure to honor a promise, which results in liability for breach of contract. If a term is a promissory condition—that is, one of the parties undertook that it would be satisfied—its nonfulfillment has the combined effect of entitling the other party (called the “promisee” in this chapter) both to withhold performance and to seek a remedy for breach. Chapter 16 concentrated on the effect of conditions and their nonfulfillment. This chapter considers the impact and consequences of the breach of a promise. Because promises are so often conditions as well (promissory conditions), a failure to perform often constitutes both a breach of the promise and nonfulfillment of a condition. This means that where a term of a contract is both a promise and a condition (a promissory condition), a material and total breach of the promise is also the nonfulfillment of the condition, which entitles the promisee not only to sue for damages for the breach, but also to withhold her own performance that is contingent on the promissory condition.

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