Determining whether a material breach has occurred under current law involves a weighing of several factors, a determination that often seems either completely without logic or precision, or self-evident and conclusory. Thus, parties are left not knowing what to do and what risks they may be assuming. The problem with the current application of material breach doctrine is in large part a result of an absence of focus. The courts apply the test without articulating any foundation or context on which it is based. The law in this area could be much improved if courts would return to Judge Cardozo's opinion in Jacob & Youngs, Inc. v. Kent. In Jacob & Youngs, Judge Cardozo defined the foundation and the context which can provide courts with the appropriate focus to use in deciding cases of material breach.
This Article critiques and suggests a modification of material breach doctrine based largely on Judge Cardozo's reasoning in Jacob & Youngs Inc. v. Kent. Part II begins with a discussion of express conditions and then outlines the common law doctrine of constructive conditions and material breach and demonstrates how it is intended to apply. Part II also describes Judge Cardozo's opinion in Jacob & Youngs and how the drafters of the Second Restatement of Contracts attempted to incorporate that approach in their definition of material breach. Part III then illustrates how the courts have failed to use material breach doctrine to address successfully the problems it is intended to resolve. Part IV examines the writings of some of those who have also studied this area and critiques the models those scholars have proposed for improving the law that governs such disputes. Part IV also explores the structure of these disputes and the policy goals the law should be striving to accomplish once such disputes arise. Part V proposes a change in the law to accomplish those goals. Finally, Part VI concludes that a change in the law would promote good faith contract performance and independent resolution of contract disputes.
42 Vill. L. Rev. 65 (1997)