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4.2-13  Material Breach of Contract

New November 1, 2009

The <party> claims that the <other party> failed to <describe> and that such failure was a material breach of the contract.  A breach of contract is material if it deprives a party of a substantial benefit that the party reasonably expected to receive under the terms of the contract.  If you find that <describe> was a substantial benefit and <other party> failed to <describe>, then you will find <other party> materially breached the contract. 

Authority 

See Shah v. Cover-It, Inc., 86 Conn. App. 71, 75-76 (2004); Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 61 (2003); Bernstein v. Nemeyer, 213 Conn. 665, 672, 570 A.2d 164 (1990), in which the Connecticut Supreme Court endorsed the use of the multifactor test set forth in the Restatement (Second) of Contracts § 241 (1981): 

In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; [and] (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. 

Notes 

The foregoing test may be confusing for a jury.  Courts purporting to apply the test generally look to factors (a) and (d).  See, e.g., Bernstein v. Nemeyer, supra, 213 Conn. 672; Strouth v. Pools by Murphy & Sons, Inc., supra, 79 Conn. App. 60-61.  Additional factors of the test should be included in the instruction if they apply.
 


 

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