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Kenneth Vercammen & Associates
A Law Office with Experienced Attorneys for Your New Jersey Legal Needs

2053 Woodbridge Ave.
Edison NJ 08817

Personal Injury and Criminal
on Weekends 732-261-4005

Princeton Area
68 South Main St.
Cranbury, NJ 08512
By Appointment Only
Toll Free 800-655-2977

Civil Model Jury Charge 4.10A BREACH of Contract Model Jury

Civil Model Jury Charge4.10a BREACH of Contract Model Jury charge

One of the elements that the plaintiff must prove is defendants breach of contract.Failure to perform a contract in accordance with its terms constitutes a breach of contract.It does not matter if the failure was purposeful or inadvertent.

The plaintiff claims the defendant breached the contract in the following manner:

[State the facts claimed to constitute the breach]

The defendant denies this.The defendant contends[state contention].

A breach may be material or minor.[1]Plaintiff can sue for any breach, even if minor providing the breach causes the plaintiff measurable injury or damage.When there has been a minor breach that may have caused the plaintiff injury or damage, it is possible for you to conclude that the defendant has nevertheless substantially performed the contract.

To find that the defendant substantially performed the contract, you would have to conclude from the evidence that the defendant made a good faith effort that actually achieved the essential purpose of the contract and provide the plaintiff with the fundamental benefits that plaintiff was supposed to receive from the contract.[2]

Now, let me explain what happens if you conclude the breach was not minor but was material. A breach is material if it affects the purpose of the contract in an important or vital way.[3]A material breach defeats the purpose of the contract and is inconsistent with the intention of the parties to be bound by the contract terms. When a defendant materially breaches a contract, the plaintiff has a right to terminate the contract and may be excused from further performance of plaintiffs remaining obligations under the contract.[4] When the plaintiffs promise under the contract was dependent upon the defendants performance and the defendant fails to perform, then the plaintiff is excused from his/her further performance of his/her promise.[5]

When a party materially breaches the contract but does not indicate any intention to renounce or repudiate the remainder of the contract, the plaintiff can elect to either continue to perform or cease to perform. If the plaintiff elects to perform, plaintiff is deprived of an excuse for ceasing performance. But even if the plaintiff elects to perform, plaintiff can still sue for any injury or damages suffered because of the material breach.[6]

[1]The generally accepted rule is that [W]hether a breach is material is a question of fact.Farnsworth on Contracts,Sec. 8.16 (1990).However, New Jersey courts will enforce a contractual provision establishing that a particular breach is grounds for termination of the contract.See Dunkin Donuts of Am., Inc. v. Middletown Donut Corp.,100N.J.166 (1985) (upholding termination of franchise on basis of contractual provision that made it clear that franchisees breach was grounds for termination);Gorrie v. Winters,214N.J. Super.103 (App. Div. 1986) (courts shall enforce mutually agreed and expressly stated time of the essence clause),certif. denied,107N.J.114 (1987).

Dunkin Donutsinvolved the termination of a doughnut franchise because the franchisee under reported gross sales.Although the Court does not quote the provision of the franchise agreement, it states the contract quite simply provided that a breach Smothergill (the franchisee) was to be ousted from the stores and lose his right to transfer them for value.Id.at 175.Although the trial court upheld the franchisors termination of the franchise, it required the franchisor to compensate the franchisee for the value of the terminated franchise.The Supreme Court reversed on the grounds that the breaching party had no right to compensation.The Court explained that although equity abhors a forfeiture, it was not free to change or abrogate the terms of the contract.

The foregoing suggests that because the franchise contracts are clear in making the under reporting of sales a material breach of contract, thereby entitling Dunkin Donuts to terminate the franchise and receive damages due, equity should and must respect these contractual provisions.(Id.at 184).

It is not clear whether the franchise agreement actually described under reporting of income as a material breach or whether it simply stated that under reporting was a breach, and any breach was a ground for termination.However,Dunkin Donutsdoes seem to indicate that the court, not the jury, shall interpret the contract in the first instance, and, if the contract makes clear that certain behavior shall be deemed a material breach (that is, a breach warranting cancellation of the contract), then the matter is an issue of law for the court.In this case, the jury would decide only any factual issues relating to whether the material breach occurred.

[2]If the defendant substantially performed the contract, it will affect the amount of money damages that can be awarded for the breach of contract.SeeChapter 8 Damages Charges.

[3]The Restatement of Contracts sets forth the following criteria for determining whether a breach is material:

a.the extent to which the injured party will be deprived of the benefit which he/she reasonably expected;

b.the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

c.the extent to which the party failing to perform or to offer to perform will suffer forfeiture;

d.the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;

e.the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.[2Restatement, Contracts 2d. 241 at 237 (1981)].

[4]Nolan v. Lee Ho,120N.J.465, 472 (1990).Restatement (Second) of Contracts, 237 (1981).

[5]Simonson v. Z. Cranbury Assoc.,L.P., 149N.J.536 (1997).

[6]Frank Stamato & Co., v. Borough of Lodi,4N.J.21 (1950).

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.


Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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