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WPI 302.01 Breach of Contract—Non-Performance of Duty

6A WAPRAC WPI 302.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 302.01 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XIII. Contracts

Chapter 302. Contracts—Performance and Breach

WPI 302.01 Breach of Contract—Non-Performance of Duty

The failure to perform fully a contractual duty when it is due is a breach of contract.

NOTE ON USE

Use this instruction along with an explanation of the particular contractual duty at issue and the factors affecting when the performance is due, according to the facts of the case. See the Comment below.

If the remedy sought or the defense being raised requires that the breach be material, use WPI 302.03 (Material Breach) with this instruction.

COMMENT

This instruction is based on Restatement (Second) of Contracts section 235(2): “When performance of a duty under a contract is due any non-performance is a breach.” Restatement (Second) of Contracts § 235(2) (1981). Comment b explains that when performance is due:

[a]nything short of full performance is a breach, even if the party who does not fully perform was not at fault and even if the defect in his performance was not substantial … Non-performance includes defective performance as well as an absence of performance.

Restatement (Second) of Contracts § 235 cmt. b (1981); see also TMT Bear Creek Shopping Ctr., Inc. v. Petco Animal Supplies, Inc., 140 Wn.App. 191, 165 P.3d 1271 (2007) (citing Restatement (Second) of Contracts (1981)).

A great many factors may affect whether performance is “due,” including the passage of a period of time, the occurrence of a condition precedent, or the discharge of a duty by performance or a change of circumstances. Restatement (Second) of Contracts § 235(2) (1981). See, e.g., WPI 302.04 (Excuse of Performance—Anticipatory Breach), WPI 302.06 (Excuse of Performance—Estoppel), WPI 302.07 (Excuse of Performance—Waiver), WPI 302.08 (Excuse of Performance—Interference With Contractual Performance), WPI 302.09 (Excuse of Performance—Impossibility or Impracticability), and WPI 302.10 (Excuse of Performance—Frustration of Purpose).

When the contract does not specify to the contrary, performances that can be rendered simultaneously are due simultaneously. Restatement (Second) of Contracts § 234 (1981).

For further discussion of material breaches of contract, see the Comments to WPI 302.03 (Material Breach—Definition) and WPI 300.02 (Burden of Proof on the Issues—Breach of Contract—No Affirmative Defense).

[Current as of April 2021.]

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