california
Termination of a contract due to breach
<p>If I understand correctly, when a party to a contract breaches the terms in a material way (i.e., repudiation), the non-breaching party can, at its discretion,  terminate it, cease performance under it and seek damages, if desired.</p>
<p>If the innocent party expressly acknowledges the breach and considers the contract terminated (but hasn’t, yet, sought damages), and the breaching party files a petition in pursuit of a contractual right which they forfeit by breaching the contract, would the outcome, likely, turn on whether or not the innocent party expressly communicated their decision to terminate the contract to the breaching party (or their failure to seek damages, assuming no “affirmation” had occurred)?</p>
<p>Would there, likely, be any bearing upon the outcome if that decision was communicated, and damages were sought, after their petition was filed?</p>
<p>Would a motion to dismiss or stay the action, for “failure to state a claim upon which relief can be granted” or a motion to dismiss or stay the action, along with motion for declaratory relief be appropriate, in lieu of filing a response/answer? Would the right to seek damages for the breach still be preserved if not sought concurrently?</p>
<p>Could filing an answer be considered an “affirmation” of the contract or create issues that would have, otherwise, been avoidable if any of the above listed action, or a different course of action was taken instead?</p>

<h2>Termination is a matter of fact</h2>
<p>That is, it has either happened, or it hasn’t. Whether it has or hasn’t depends on a multitude of factors including the terms of the contract, the actions of the parties, and communication between them. These factors are so case specific that it is impossible to generalise.</p>
<p>Further, within a given case, reasonable parties may differ on if a contract has been terminated, which party initiated the termination, and if that termination was lawful. Usually, these cases involve mutual allegations of repudiation by the other party and rightful termination in response by our side. These issues are likely to be the major ones that the court or tribunal will have to determine.</p>
<p>A claim for damages would need to be pursued as part of the overall case but the deadline for raising them is a procedural matter for the court or tribunal. Failing to raise them as an issue in pre-litigation correspondence would not be a bar to raising them in a claim or counter-claim.</p>
<p>However, failing to raise them at the earliest opportunity denies the offending party the opportunity to mitigate the damage and, if they can show that there were actions they could have reasonably taken to mitigate but couldn’t because they weren’t informed, then that may reduce or eliminate the damages payable.</p>
