Breach vs Non‑Performance: What’s the Difference & What You Can Do
When someone doesn’t fulfill their contractual obligations, it may be non‑performance or an outright breach. Understanding the distinction is key to knowing your rights and options. In this article, we’ll break down both concepts, when they apply, and what you can do to protect yourself.
1. What Is Non‑Performance?
Non‑performance means one party fails to perform an obligation as agreed in a contract. This could be late delivery, partial performance, or failure to act at all.
Non‑performance may not always amount to breach if the contract allows a cure period or there’s a waiver clause.
2. What Is a Breach of Contract?
A breach is a failure to perform that violates a material term of the contract. Not all non‑performance is breach. A breach gives the non‑breaching party legal remedies such as damages or termination.
3. Material vs Minor Breach
- Material breach: A significant violation that goes to the heart of the contract (e.g. not delivering a major component).
- Minor breach (or partial breach): A lesser failure that doesn’t destroy the contract’s purpose (e.g. small delay or cosmetic error).
4. Remedies Available
- Specific performance: Court order forcing performance (rare, usually in real estate or unique goods).
- Damages: Monetary compensation for losses caused by the breach.
- Termination / rescission: Cancel the contract and return parties to pre‑contract state.
- Withholding performance: You may suspend your own performance until the other party performs (if allowed).
5. What You Should Do When Facing Non‑Performance or Breach
- Review the contract: See if it allows cure periods, notice requirement, or limits remedies.
- Send a formal notice or demand: State the failure and allow time to cure (if contract allows).
- Document damages and losses: Keep records, invoices, correspondence.
- Consider negotiation or mediation: Sometimes settlement is better than litigation.
- Seek legal advice if the breach is material or the other side refuses to remedy.
Conclusion
Non‑performance and breach are related but distinct concepts in contract law. Knowing which you’re facing determines your options and next steps. If you’re dealing with a contract where someone isn’t doing what they promised, I can help you assess whether that’s a breach or just non‑performance, and recommend your best path forward.
FAQ
- Is every non‑performance a breach?
- No — only when it violates a material term or the contract lacks a cure option.
- Can I sue for breach if there was a delay?
- Yes, if time was of the essence or the delay caused significant harm and is a material breach.
- What if the contract says “time is not of the essence”?
- Then a delay may not automatically be a breach; courts will look at whether performance still met the contract’s purpose.
- Can I claim both breach and damages?
- Yes—remedies typically include damages as well as other relief, depending on contract terms.
- Should I terminate immediately when breaching?
- Only if the breach is material and contract allows termination. Otherwise, give notice or allow cure if possible.