Recovery for services where full performance impossible... 1973 Recovery of payments made or property transferred, where full perform- Measure of damages where full performance is prevented by impossibility... 1977 Benefits received from third persons by party excused from performing. Other contingent claims under the Act of 1898.. Creditor's right against several bankrupt principals and sureties.. One action only is allowed for a single breach of contract. 1291 Sometimes one action only allowed for several breaches of contract. 1292 First half of Cockburn's rule approved in England but inconsistent with Distinction between action for restitution and action on the contract. 1316 No inconsistency in allowing full damages before all performance due. 1317 What constitutes an election to treat repudiation as a breach. 1323 Positiveness of repudiation. . . 1324 What amounts to total repudiation. 1325 Whether anticipatory inability to perform amounts to a breach. 1326 1327 There can be no anticipatory breach of unilateral obligations.. 1328 1329 Repudiated contract of insurance. 1330 Repudiation may be a defence though it does not amount to a breach. 1331 Time when repudiation becomes effectual.. 1332 Effect of failing to elect to treat repudiation as a breach under the English rule. . . . . 1333 American decisions opposed to English rule.. 1334 Withdrawal of repudiation... 1335 Possible distinction between the effect of repudiation before breach and after partial breach of a contract... 1336 Summary of American doctrine in regard to anticipatory breach. 1337 § 1288. A breach of contract involves a broken promise. As a contract consists of a binding promise or set of promises, a breach of contract is a failure, without legal excuse, to perform any promise which forms the whole or part of a contract. It is inmaterial for this purpose whether the failure in performance is great or small, or whether any damage has been caused. Any breach of contract gives rise to a right of action; and at common law no judicial expression of the rights of the parties could be obtained until there had been a breach.2 When the time for performance of a promise has so far passed that substantial fulfilment of the promise is no longer possible, the obligation of the promisor changes its character. Even though the law could and did grant specific performance, so called, of all contracts, the performance enforced by the court would differ from that contracted for at least in being given at a later time than was agreed. The Civil law makes a distinction in terms between mora or delay in performance, and a breach in other respects than in time, of the duty to perform. The difference is not so sharply defined in English and American law, but is, nevertheless, implicitly observed in some distinctions which the law makes. The obligation to perform and the obligation to do so at a fixed time are regarded as two duties, to make anticipatory declaration of the rights of parties. 1 See infra, 1340, ad fin. 2 See 42 N. J. L. Jl. 102, as to statutory powers given English courts, rather than as one indivisible duty. Thus a promise to convey property which is enforced by equity is regarded as specifically enforced even though considerable time has elapsed after the date at which it was agreed that the conveyance should be made. Damages may be given for the delay as a separate matter. At law a promise to pay money is almost the only kind of promise which can be specifically enforced, and the common law in enforcing an obligation to pay an agreed sum of money ceived that the promise itself continued in effect after the time fixed for its performance had elapsed. On the other hand, when a promise to deliver goods or do anything other than pay money is broken, the law substitutes for the obligation a right of action for damages.1 3 con It should be observed, however, that this distinction between an obligation to pay money and an obligation to do other things is only applicable where the money is absolutely due. When money is promised in exchange for something else which has not been given, and where, therefore, no debt has arisen, a breach of the promise to pay the money for the performance to be exchanged for it is ground for the payment of damages, not for the recovery of the full sum promised. In such a case the same considerations are applicable as in the case of obligations to deliver goods or render services. §1289. Promises payable on demand. Generally there can be no breach of a promise until all the conditions qualifying it have happened or been performed." But a peculiar rule prevails in regard to promises to pay on demand. "When a party agrees to pay his own debt on request, A few other promises may in effect be specifically enforced at law, e. g., a promise of perpetual forbearance, a promise to keep an offer open. 'An illustration of this distinction is found in the rule of the common law that an accord and satisfaction could not discharge liability on a sealed instrument for the payment of money even after breach, but an accord and satisfaction after breach of a covenant of any other character could be made, for the covenant had merged in a right of action for damages. See infra, § 1849. 5 Blackburn v. Irvine, 225 Fed. 217, 123 C. C. A. 405; Allen v. Stephens, 102 Ga. 596, 29 S. E. 443; Atcherley v. Lewers, 18 Hawaii, 625; In re Squire, 168 Ia. 597, 150 N. W. 706; McDermott v. Alger, 186 Mich. 278, 152 N. W. 991; Essex v. Smith, 97 Neb. 649, 150 N. W. 1022; Gilbert v. Taylor, 148 N. Y. 298, 42 N. E. 713. |