LEGAL GUIDE
Written by attorney Sven David Buncher | Sep 6, 2010

Breach of Contract Litigation In General

Breach of Contract involves the failure to perform an agreement. Contracts are either express (things that the parties expressly agree to), or implied by conduct or the law (in the latter case, the law as a matter of equity implies a contract to prevent the defendant from being unjustly enriched and taking advantage of the value given by plaintiff). [See Civil Code ("CC") §1619.] In respect to express contracts, generally they may be based upon an oral agreement, although the law does require that some be in writing (see CC §1622) to be enforceable. Even where this rule may apply, there may be other arguments that can be made to circumvent this general rule.

Typically, one must file a claim for breach of a written contract within four years pursuant to the statute of limitations. [Code of Civil Procedure ("CCP") §337(1).] Oral contracts are typically subject to a 2 year statute of limitations. [CCP §339(1).] Again, even where the statute of limitations may appear to have been tolled, there may be other arguments or causes of action which may afford relief, such as an action in Quantum Meruit (a claim for reimbursement for the reasonable value of services rendered), Account Stated, and so on. Regardless, you should not rely on the general information provided herein when making decisions about your case, and instead consult with an attorney to determine what particular statutes of limitations apply, and their duration.

Unlike actions in tort, causes of action based in contract generally preclude claims for "general damages" such as pain and suffering and emotional distress. Contract actions often limit the claimant to the benefit of the bargain that would have been obtained had the contract been performed, lost profits, loss of use, and so on. Because an action based in tort may afford a higher recovery, a plaintiff may elect to pursue tort based causes of action rather than contract remedies. The same complaint may allege causes of action based in both contract and tort against the same or different parties. For instance, a homeowner may allege breach of contact against a general contractor for failing to properly perform contracting services at his home, and a cause of action of negligence against the subcontractor, who did not have a direct contract with the homeowner, but performed work in a defective manner. Because of the complexity of contract based actions, whether you are a plaintiff or a defendant, it is important to retain a good business litigation attorney to represent you in your case. Look to BCB to provide you with unparalleled representation in serving you as your Orange County business litigation attorney.

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