California Civil Jury Instructions (CACI) (2017)

303. Breach of Contract—Essential Factual Elements

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303.Breach of Contract—Essential Factual Elements
To recover damages from [name of defendant] for breach of contract,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] entered into a
contract;
[2. That [name of plaintiff] did all, or substantially all, of the
significant things that the contract required [him/her/it] to do;]
[or]
[2. That [name of plaintiff] was excused from having to [specify things
that plaintiff did not do, e.g., obtain a guarantor on the contract];]
[3. That [specify occurrence of all conditions required by the contract
for [name of defendant]’s performance, e.g., the property was
rezoned for residential use];]
[or]
[3. That [specify condition(s) that did not occur] [was/were] [waived/
excused];]
[4. That [name of defendant] failed to do something that the contract
required [him/her/it] to do;]
[or]
[4. That [name of defendant] did something that the contract
prohibited [him/her/it] from doing;]
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s breach of contract was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised April 2004, June 2006, December 2010, June 2011,
June 2013, June 2015, December 2016
Directions for Use
Read this instruction in conjunction with CACI No. 300, Breach of
Contract—Introduction.
Optional elements 2 and 3 both involve conditions precedent. A “condition
precedent” is either an act of a party that must be performed or an uncertain event
that must happen before the contractual right accrues or the contractual duty arises.
(Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co. (2014) 231 Cal.App.4th
1131, 1147 [180 Cal.Rptr.3d 683].) Element 2 involves the first kind of condition
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precedent; an act that must be performed by one party before the other is required
to perform. Include the second option if the plaintiff alleges that he or she was
excused from having to perform some or all of the contractual conditions.
Not every breach of contract by the plaintiff will relieve the defendant of the
obligation to perform. The breach must be material; element 2 captures materiality
by requiring that the plaintiff have done the significant things that the contract
required. Also, the two obligations must be dependent, meaning that the parties
specifically bargained that the failure to perform the one relieves the obligation to
perform the other. While materiality is generally a question of fact, whether
covenants are dependent or independent is a matter of construing the agreement.
(Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279 [120 Cal.Rptr.3d 893].) If
there is no extrinsic evidence in aid of construction, the question is one of law for
the court. (Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333 [284 P.2d 94].)
Therefore, element 2 should not be given unless the court has determined that
dependent obligations are involved. If parol evidence is required and a dispute of
facts is presented, additional instructions on the disputed facts will be necessary.
(See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th
375, 395 [75 Cal.Rptr.3d 333, 181 P.3d 142].)
Element 3 involves the second kind of condition precedent; an uncertain event that
must happen before contractual duties are triggered. Include the second option if
the plaintiff alleges that the defendant agreed to perform even though a condition
did not occur. For reasons that the occurrence of a condition may have been
excused, see the Restatement Second of Contracts, section 225, Comment b. See
also CACI No. 321, Existence of Condition Precedent Disputed, CACI No. 322,
Occurrence of Agreed Condition Precedent, and CACI No. 323, Waiver of
Condition Precedent.
Element 6 states the test for causation in a breach of contract action: whether the
breach was a substantial factor in causing the damages. (US Ecology, Inc. v. State
of California (2005) 129 Cal.App.4th 887, 909 [28 Cal.Rptr.3d 894].) In the
context of breach of contract, it has been said that the term “substantial factor” has
no precise definition, but is something that is more than a slight, trivial, negligible,
or theoretical factor in producing a particular result. (Haley v. Casa Del Rey
Homeowners Assn. (2007) 153 Cal.App.4th 863, 871−872 [63 Cal.Rptr.3d 514]; see
CACI No. 430, Causation—Substantial Factor, applicable to negligence actions.)
Equitable remedies are also available for breach. “As a general proposition, ‘[t]he
jury trial is a matter of right in a civil action at law, but not in equity.
[Citations.]’ ” (C & K Engineering Contractors v. Amber Steel Co., Inc. (1978) 23
Cal.3d 1, 8 [151 Cal.Rptr. 323, 587 P.2d 1136]; Selby Constructors v. McCarthy
(1979) 91 Cal.App.3d 517, 524 [154 Cal.Rptr. 164].) However, juries may render
advisory verdicts on these issues. (Raedeke v. Gibraltar Savings & Loan Assn.
(1974) 10 Cal.3d 665, 670–671 [111 Cal.Rptr. 693, 517 P.2d 1157].)
Sources and Authority
• Contract Defined. Civil Code section 1549.
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• “A contract is a voluntary and lawful agreement, by competent parties, for a
good consideration, to do or not to do a specified thing.” (Robinson v. Magee
(1858) 9 Cal. 81, 83.)
• “To prevail on a cause of action for breach of contract, the plaintiff must prove
(1) the contract, (2) the plaintiff’s performance of the contract or excuse for
nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the
plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186 [169
Cal.Rptr.3d 475].)
• “Implicit in the element of damage is that the defendant’s breach caused the
plaintiff’s damage.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th
1305, 1352 [90 Cal.Rptr.3d 589], original italics.)
• “It is elementary a plaintiff suing for breach of contract must prove it has
performed all conditions on its part or that it was excused from performance.
Similarly, where defendant’s duty to perform under the contract is conditioned
on the happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc., v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524], internal citation omitted.)
• “When a party’s failure to perform a contractual obligation constitutes a
material breach of the contract, the other party may be discharged from its duty
to perform under the contract. Normally the question of whether a breach of an
obligation is a material breach, so as to excuse performance by the other party,
is a question of fact. Whether a partial breach of a contract is material depends
on ‘the importance or seriousness thereof and the probability of the injured
party getting substantial performance.’ ‘A material breach of one aspect of a
contract generally constitutes a material breach of the whole contract.’ ”
(Brown,supra, 192 Cal.App.4th at pp. 277–278, internal citations omitted.)
• “Whether breach of the agreement not to molest bars [plaintiff]’s recovery of
agreed support payments raises the question whether the two covenants are
dependent or independent. If the covenants are independent, breach of one does
not excuse performance of the other. (Verdier,supra, 133 Cal.App.2d at p. 334.)
• “The determination of whether a promise is an independent covenant, so that
breach of that promise by one party does not excuse performance by the other
party, is based on the intention of the parties as deduced from the agreement.
The trial court relied upon parol evidence to determine the content and
interpretation of the fee-sharing agreement between the parties. Accordingly,
that determination is a question of fact that must be upheld if based on
substantial evidence.” (Brown,supra, 192 Cal.App.4th at p. 279, internal
citation omitted.)
• “The wrongful, i.e., the unjustified or unexcused, failure to perform a contract is
abreach. Where the nonperformance is legally justified, or excused, there may
be a failure of consideration, but not a breach.” (1 Witkin, Summary of
California Law (10th ed. 2005) Contracts, § 847, original italics, internal
citations omitted.) “Ordinarily, a breach is the result of an intentional act, but
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negligent performance may also constitute a breach, giving rise to alternative
contract and tort actions.” (Ibid., original italics.)
• “b. Excuse. The non-occurrence of a condition of a duty is said to be ‘excused’
when the condition need no longer occur in order for performance of the duty
to become due. The non-occurrence of a condition may be excused on a variety
of grounds. It may be excused by a subsequent promise, even without
consideration, to perform the duty in spite of the non-occurrence of the
condition. See the treatment of ‘waiver’ in § 84, and the treatment of discharge
in §§ 273–85. It may be excused by acceptance of performance in spite of the
non-occurrence of the condition, or by rejection following its non-occurrence
accompanied by an inadequate statement of reasons. See §§ 246–48. It may be
excused by a repudiation of the conditional duty or by a manifestation of an
inability to perform it. See § 255; §§ 250–51. It may be excused by prevention
or hindrance of its occurrence through a breach of the duty of good faith and
fair dealing (§ 205). See § 239. And it may be excused by impracticability. See
§ 271. These and other grounds for excuse are dealt with in other chapters of
this Restatement. This Chapter deals only with one general ground, excuse to
avoid forfeiture. See § 229.” (Rest.2d of Contracts, § 225.)
• “ ‘ “Where a party’s breach by non-performance contributes materially to the
non-occurrence of a condition of one of his duties, the non-occurrence is
excused.” [Citation.]’ ” (Stephens & Stephens XII, LLC, supra, 231 Cal. App.
4th at p. 1144.)
• “ ‘Causation of damages in contract cases, as in tort cases, requires that the
damages be proximately caused by the defendant’s breach, and that their causal
occurrence be at least reasonably certain.’ A proximate cause of loss or damage
is something that is a substantial factor in bringing about that loss or damage.”
(U.S. Ecology, Inc., supra, 129 Cal.App.4th at p. 909, internal citations
omitted.)
• “An essential element of [breach of contract] claims is that a defendant’s
alleged misconduct was the cause in fact of the plaintiff’s damage. [¶] The
causation analysis involves two elements. ‘ “One is cause in fact. An act is a
cause in fact if it is a necessary antecedent of an event.” [Citation.]’ The second
element is proximate cause. ‘ “[P]roximate cause ‘is ordinarily concerned, not
with the fact of causation, but with the various considerations of policy that
limit an actor’s responsibility for the consequences of his conduct.’ ” ’ ”
(Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239
Cal.App.4th 1088, 1102−1103 [192 Cal.Rptr.3d 354], footnote and internal
citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 847
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.50
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.10 et seq. (Matthew
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Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.03–22.50
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