Legal Question in Business Law in California

Re: contracts

yes

Re: contracts

It depends. If you hire a contractor to build a fence around your yard, and the contractor fails to do all that a competent contractor performing the same work would do (i.e., he fails to build the fence to code), the answer is yes. On the other hand, if the same contractor negligently damages your bird bath, the answer would probably be no (although you still might have some cause of action under some other theory for your damages).

Re: contracts

Unless the contract has terms providing that "negligence" is not necessarily a breach (which would be very unusual), negligent performance is a breach. Now, the other party might provide legal reasons why he, she or it didn't have to perform, such as impossibility (act of God), or some other legally-recognized excuse; but that is another question entirely.

Re: contracts

Your question is too abstract. The best answer is that negligence is not necessarily a breach. However, to understand what you're really getting at, you'd have to look at the specifics of the contract and the specifics of the negligent conduct you're contemplating.

Re: contracts

Negligence is a tort doctrine and plays no part in contract law. If the other party to your contract lived up to her end of the bargain (by providing you with what was agreed upon, of acceptable quality, at the agreed price, by the agreed deadline, etc.) then there is no breach. If she fails to meet her obligations, then there has been a breach.

If she negligently damages you or someone else in the process of successfully performing the contract, then you have a cause of action for negligence but not for breach of contract. If you don't pay up then *you* will have breached and she can successfully sue you for it. If your damage is smaller than the amount you owe under the contract you can claim an offset as an affirmative defense, or you can sue her for negligence while her suit proceeds. Depending upon the facts, these competing claims might have to be made in a single lawsuit -- in other words, if she sues you and you don't file a cross-complaint for negligence, you may not be permitted to file a separate lawsuit later.

If your damages exceed the amount you owe under the contract, then you will have to sue her if you want to recover for your entire loss. An offset can never exceed the amount claimed by the plaintiff, so you must sue her if you want a net recovery.

Of course, if you sue for negligence she can claim an offset equal to the amount you owe on the contract.

Re: contracts

What a variety of answers! I think there is an argument that each of them is at least partially correct. Perhaps Mr. Roy Hoffman's answer is the most useful one for a layman. One of the difficulties in answering is that "negligence" means failure to exercise the care that the circumstances justly demand, which can happen within the context of a contract's performance, and the term is also the name for a specific kind of tort.

Now, here's mine:

A contract is breached when one or more of its promises are broken. All contracts include implied promises as well as express terms; these include the "implied covenant of good faith and fair dealing." Contracts involving goods carry implied warranties, which would cover injury resulting from negligent design and manufacture of the goods. In addition, contracts for services would generally be deemed to contain an implied promise that the services would be performed to a certain standard and in a non-negligent manner. (The minimum level of competence which is not a breach will vary, depending on a party's reasonable expectations in the circumstances).

Therefore, I would say that negligence, if defined as failure to exercise due care, can indeed amount to a breach of contract. Caution: not all negligence in performance of a contract will result in a breach! Further, not every breach of a contract is sufficiently material to excuse performance by the non-breaching party, or to terminate the contract or to give rise to a claim for damages.

Also, if the negligence is unrelated to a promise of the contract, it is not a breach, but may give rise to a separate (tort) cause of action.

Finally, lawyers often use a mixture of contract and tort claims in drafting lawsuits over a single set of facts, because the law permits the pleading of inconsistent theories. Sometimes you lose on one theory but win on the other, either due to later-learned facts, the applicable statute of limitations (shorter on tort negligence than for suit on a written contract), or other technical reasons.

Hope this helps.