B700.07. Contract-Excuse of Performance-Prior Material Breach

B700.07 Contract--Excuse of Performance--Prior Material Breach [Party's name]'s failure to keep [his] [her] [its] promise is excused, if the [opposing party's name] committed a prior, material breach of contract. When I use the phrase "material breach," I mean the failure to perform a contractual duty that is of such importance that the parties would not have entered into the contract without it. The test is whether the breach is so substantial and fundamental as to defeat the objectives of the parties in making the agreement, or whether the failure to perform renders performance of the rest of the contract different in substance from the original agreement. The breach must be so important as to justify the injured party in treating the whole transaction as ended. To excuse [party's name]'s failure to perform, [party's name] must prove that [opposing party's name] committed a prior material breach of contract in one or more of the following respects: [State what the party claims was a material breach of the contract by opposing party] You will address this issue in question [___] on your verdict.