Asserting Breach of Contract Claims

by Practical Law Commercial Litigation

A Practice Note discussing strategies for asserting common law breach of contract claims. This Note addresses initial considerations before filing an action, including reviewing contract documents and analyzing procedural issues such as pre-suit requirements, standing, controlling law, and proper forum. It offers guidance on pleading the essential elements of the claim, covering the existence of a valid contract, the plaintiff's performance or legally recognized excuse for nonperformance, the defendant's breach, and the resulting damages. This Note explores pleading for various types of damages, including general, special (or consequential), and liquidated damages, while also touching on the enforceability of liquidated damages clauses. Furthermore, it examines how to plead for alternative or additional relief, such as equitable remedies, declaratory relief, interest, and attorneys' fees, and discusses strategies for anticipating potential defenses from the breaching party.