Search The Library's Lexicon
The violation of an obligation, engagement or duty; as a breach of covenant is the non-performance or violation of a covenant; the breach of a promise is non-performance of a promise; the breach of a duty is the refusal or neglect to execute an office or public trust, according to law.
Breaches of a contract are single or continuing breaches. The former are those which are committed at one single time. A continuing breach is one committed at different times as if a covenant to repair be broken at one time, and the same covenant be again broken, it is a continuing breach. When a covenant running with the land is assigned after a single breach the right of action for such breach does not pass to the assignee but if it be assigned after the commencement of a continuing breach, the right of action then vests in such assignee.
In general the remedy for breaches of contracts, or quasi contracts, is by a civil action.
Pleading. That part of the declaration in which the violation of the defendant's contract is stated.
It is usual in assumpsit to introduce the statement of the particular breach, with the allegation that the defendant, contriving and fraudulently intending craftily and subtilely to deceive and defraud the plaintiff, neglected and refused to perform, or performed the particular act contrary to the previous stipulation.
In debt, the breach or cause of action complained of must proceed only for the non-payment of money previously alleged to be payable; and such breach is nearly similar, whether the action be in debt on simple contract, specially, record or statute, and is usually of the following form: 'Yet the said defendant, although often requested so to do, hath not as yet paid the said sum of ____ dollars above demanded, nor any part thereof to the said plaintiff, but hath hitherto wholly neglected and refused so to do to the damage of the said plaintiff _________ dollars, and therefore he brings suit,' etc.
The breach must obviously be governed by the nature of the stipulation; it ought to be assigned in the words of the contract, either negatively or affirmatively, or in words which are co-extensive with its import and effect.
When the contract is in the disjunctive, as on a promise to deliver a horse by a particular day or pay a sum of money, the breach ought to be assigned that the defendant did not do the one act nor the other.