CACI No. 303. Breach of Contract - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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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
[2. That [name of plaintiff] did all, or substantially all, of the
significant things that the contract required [him/her/nonbinary
pronoun/it] to do;]
[2. [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];]
[3. [or]
[3. That [specify condition(s) that did not occur] [was/were] [waived/
[4. That [name of defendant] failed to do something that the contract
required [him/her/nonbinary pronoun/it] to do;]
[4. [or]
[4. That [name of defendant] did something that the contract
prohibited [him/her/nonbinary pronoun/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, May 2020
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
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 the plaintiff 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.
“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.)
“The obligations of the parties to a contract are either dependent or independent.
The parties’ obligations are dependent when the performance by one party is a
condition precedent to the other party’s performance. In that event, one party is
excused from its obligation to perform if the other party fails to perform. If the
parties’ obligations are independent, the breach by one party does not excuse the
other party’s performance. Instead, the nonbreaching party still must perform and
its remedy is to seek damages from the other party based on its breach of the
contract.” (Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172, 1182-1183 [236
Cal.Rptr.3d 542], internal citations omitted.)
“Whether specific contractual obligations are independent or dependent is a
matter of contract interpretation based on the contract’s plain language and the
parties’ intent. Dependent covenants or ‘[c]onditions precedent are not favored in
the law [citations], and courts shall not construe a term of the contract so as to
establish a condition precedent absent plain and unambiguous contract language
to that effect.’ (Colaco,supra, 25 Cal.App.5th at p. 1183, internal citations
“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
negligent performance may also constitute a breach, giving rise to alternative
contract and tort actions.” (Ibid., original italics.)
“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 actors
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.)
“Determining whether a defendant’s misconduct was the cause in fact of a
plaintiff’s injury involves essentially the same inquiry in both contract and tort
cases.” (Tribeca Companies, LLC, supra, 239 Cal.App.4th at p. 1103.)
“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, comment b.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 872
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
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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