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What is a Breach?

Updated on January 7, 2010

A breach, in law, is the violation of a duty or obligation, either by commission or omission. The principal types include: breach of contract; breach of warranty; breach of trust; and breach of the peace.

Breach of Contract

Any wrongful failure to perform a duty undertaken in a legally enforceable agreement is a breach of contract. It may take various forms, including the refusal to perform certain acts promised, the prevention or hindrance of performance by the other party to the contract, and the outright repudiation of the contract. Breach of contract applies only to those failures to perform for which legal excuse is lacking, and not to cases of justifiable non-performance.

The most obvious form of breach is the omission to do something at the time specified in the contract. An anticipatory breach, however, may occur before the time for performance, if one of the parties does or says something which clearly indicates his intention to refuse performance in the future. Similarly, the absolute renunciation or disclaimer of a contract, usually called repudiation, may constitute a breach. Doing something inconsistent with the existence of a contract, such as making oneself unable to fulfill its conditions, may amount to a breach. A party to a contract may also effect a breach by preventing or hindering performance by the other party. The usual remedy available to the injured party for a breach of contract is a suit for damages.

Breach of Warranty

The failure to fulfill certain conditions in connection with contracts, sales, deeds, and other similar transactions is known in law as breach of warranty. Such conditions may be either expressly stated or implied by law. When real estate is sold, the deed ordinarily contains a covenant of warranty, which is an agreement by the seller that in the event of a defect in the tide, he will compensate the buyer for any loss suffered.

A breach of this kind of warranty occurs if the buyer is actually or constructively evicted by someone asserting a paramount tide. In connection widi sales of property other than real estate, a warranty is an agreement by the seller to be legally responsible for the falsity of an express or implied statement of fact relating to title, quality, or quantity. The breach of such a warranty consists of the failure of the goods sold to comply with the terms stated or understood at the time of the sale. In the law of insurance, warranties include certain statements, descriptions, and undertakings on the part of the insured. The falsity of such statements, or the failure of the insured to carry out such undertakings, may constitute a breach of warranty, particularly if fraud or bad faidi is involved.

Breach of Trust

Violation by a trustee of any duty that he owes to the beneficiaries of the trust is a breach of trust. Some of the acts and omissions that may constitute a breach of trust by a trustee are the selling of trust property diat it is his duty to retain, the failure to sell property that it is his duty to sell, the improper investment of trust funds, and the failure to buy property dial it is his duty to buy.

A trustee's failure to perform his duties properly is ordinarily considered a breach of trust only if negligence or intentional wrongdoing is involved. There are some instances, however, where he may be liable even if he acts in good faith and with due care. One example of such a case is the payment of trust funds by mistake to a person who is not a beneficiary of the trust. Another example of a breach of trust not involving negligence is a mistake of law as to the extent of the trustee's duties or powers, made by him upon the advice of competent counsel.

If a trustee makes a profit from a breach of trust, he must pay it over to the beneficiaries upon demand. Alternatively, the beneficiaries may elect to insist upon having the profit dial would have accrued to diem if there had been no breach of trust. In cases where a breach of trust results in a loss, the trustee is chargeable with the loss.

Breach of the Peace

In English criminal law a Breach of the Peace connotes any act producing or tending to produce a breach of the queen's peace, e.g. murder, affray, assault, or a challenge to fight either by word or letter. The queen's peace is a comprehensive notion by the aid of which the Crown establishes a right to be a party to all criminal proceedings or pleas of the Crown. It has its origin in feudal times

A Breach of the Peace is a violation of public order or a disturbance of the public tranquility. The term includes a wide variety of actions, such as riots, affrays, public fighting, unlawful discharge of firearms, and the use of abusive or threatening language under particular conditions or circumstances. Although breach of the peace is an offense at common law, it has been defined by statute in many jurisdictions. Actual or threatened violence is generally considered one of the essential elements of the offense.


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