Material Breach/Substantial Performance Factors

• How much of the contracted benefits the promisee received that an ordinary person would have expected from full performance
• To what extent awarded damages would make up for the deficient performance
• How wrongful/in bad faith the breach of the contract was
  • Was the breach willful?

 Common

• Perfect performance
  • no breach
  • everyone performs
• Substantial performance
  • breach
  • everyone performs
• Material Breach
  • promisee need not perform

UCC

• Perfect tender
  • no breach
• If not perfect tender, there is breach.
  • Right to reject
  • right to accept and sue (for damages)
  • right to cure