BREACH

BREACH = A breach is a party's failure to perform some contracted-for or agreed-upon act, or his failure to comply with a duty imposed by law, which is owed to another or to society.

ANTICIPATORY BREACH = (arrependimento contratual; ocorrência de tentativa de violação) breach committed before the arrival of the actual time of required performance. It occurs when one party by declaration repudiates his contractual obligation before it is due, so that he refuses to honor the contract. The repudiation required is 'a positive statement indicating that the promisor will not or cannot substantially perform his contractual duties.' A repudiation will justify a demand by the aggrieved party for an 'assurance of performance.' Or an action for relief in a breached contract.

ANTICIPATORY REPUDIATION = a refusal by one party to a contract to perform his or her future obligations under the contract that is expressed either by a clear statement of refusal or by a statement or action that clearly implies refusal . Where the anticipatory repudiation is by the party's conduct rather than by declaration it is called VOLUNTARY DISABLEMENT. For example, if A promises to give B a unique sculpture in exchange for B painting A's house, but A then sells the sculpture to C before B completes the job, this act by A constitutes an anticipatory repudiation which excuses B from completing the job. Once the sculpture has left A's possession, there is no way that A can fulfill the promise to give the sculpture to B. See:"The Convention on the International Sale of Goods: Anticipatory Repudiation Provisions and Developing Countries". Upon breach of contract, the aggrieved party is entitled to damages and, depending upon the nature of the breach, may also be discharged from performing its remaining obligations under the contract. May these same remedies be invoked prior to the time that performance is due if a party obligated to perform states that it does not intend to perform or cannot perform or if it becomes apparent that the party obligated to perform cannot perform? The doctrine of anticipatory repudiation responds to this question. Hochster v. DeLaTour, involving a courier discharged by his employer prior to the time employment was to start, is the classic case on anticipatory repudiation. Short of an indication that one party does not intend to perform or will not be able to perform, the other party nevertheless may become insecure about the prospect of receiving the benefit of its promised performance. For transactions in goods, where there are reasonable grounds for such insecurity, U.C.C. 2-609 provides a right of the insecure party to demand and receive adequate assurance of performance from the other.

EFFICIENT BREACH = breach of contract in economic theory in which it is more profitable for the breaching party to breach the contract and pay damages than to perform under the contract

MATERIAL BREACH = a breach of contract that is so substantial that it defeats the purpose of the parties in making the contract and gives the non breaching party the right to cancel the contract and sue for damages. Whether a breach is material is a question of fact. Under the Restatement (Second) of Contracts, a material breach gives rise to the right to suspend performance but not to cancel the contract until there is a total breach.

PARTIAL BREACH = a breach of contract in which the breaching party's nonperformance is minor and gives rise to the right to sue for damages but not to suspend performance or cancel the contract, since it does not substantially impairs the value of the contract and does not give the injured party cause to abandon the whole contract. For example, you order a white yacht, and the seller delivers a yellow yacht; you may seek damages for the cost of painting the yacht white.

TOTAL BREACH = a breach of contract under the Restatement (Second) of Contracts that is so substantial that it gives rise to the right to cancel the contract and sue for damages.

BREACH OF DUTY -= a failure to perform a duty owed to another or to society; a failure to exercise that care which a reasonable man would exercise under similar circumstances.

BREACH OF TRUST = a violation by a trustee of a duty which equity lays upon him, whether willful and fraudulent, or done through negligence, or arising through mere oversight and forgetfulness.

BREACH OF WARRANTY = an infraction to an express or implied agreement as to the title, quality, content or condition of a thing sold or bailed. A warranty is a guarantee and is breached when the thing so guaranteed is deficient according to the terms of the warranty. A seller may be liable for a breach of warranty even without any negligence or misconduct.

action for breach = ação por violação
anticipatory breach = (arrependimento contratual; ocorrência de tentativa de violação) occurs when a party indicates in advance, by words or conduct, that it does not intend to fulfill an obligation when it falls due under a contract. (withdrawable)
breach of bank secrecy = violação de sigilo bancário (sentido negativo)
breach of close = invasão de domicílio
breach of confidence occurs when a person who has been entrusted with confidential information uses that information improperly 370
breach of confidentiality = violação de sigilo
breach of confidentiality = violação de sigilo
breach of contract / default / noncompliance = inexecução da obrigação, violação de contrato, dano de confiança, culpa contratual; inadimplemento; incumprimento do contrato, quebra/rompimento de contrato, inadimplemento contratual, falta de cumprimento de um contrato ou qualquer de suas condições, culpa contratual, quebramento, ruptura
breach of duty to take care / negligent bailee / unfaithful depositary inbreach of duty / = violação do dever de vigilância (faulty bailee depositário infiel)
breach of peace; tumult; street riot; brawl. arruaça
breach of prison = fuga da prisão
breach of representation. incumprimento de representação
breach of rules of procedure (penalty for) = sanções processuais
breach of the right to jurisdictional protection by the courts = violação à irrecusabilidade da jurisdição estatal
breach of trust, betrayal of confidence, detournment, embezzlement, treachery; perfidy = abuso de confiança, aleivosia
breach of warranty of authority occurs when an agent indicates that it is authorized to act for a principal when it is not.
constructive breach of contract. incumprimento implícito
damage resulting from breach of contract. prejuízo positivo
defense of breach of contract. exceção do contrato não cumprido
direct inducement to breach of contract occurs when the defendant directly persuades a third party to break its contract with the plaintiff
indirect inducement to breach of contract occurs when the defendant indirectly persuades a third party to break its contract with the plaintiff
knowing or fraudulent breach = violação dolosa ou fraudulenta
material breach = violação significativa; grave infração contratual
perfect law; law that sanctions breach with nullity = lei perfeita
willful breach = violação intencional
Source: Various