AMI 2401 Issues—Breach of Contract

[Plaintiff] claims that [defendant] breached a contract and has the burden of proving each of four essential propositions:

First, that [plaintiff] and [defendant] entered into a contract; Second, that the contract required [defendant] to perform or not to perform a certain act;

Third, [that [plaintiff] did what the contract required of (him)(her)(it)] [that [plaintiff]'s performance was excused]; and

Fourth, that [defendant] did not do what the contract required of [him][her][it].

[If you find that the [plaintiff] has proved each of these propositions, then your verdict should be for [plaintiff]. If, however, [plaintiff] has failed to prove any one or more of these propositions, then your verdict should be for [defendant].]

NOTE ON USE

Use the appropriate bracketed portion of the third element. If the second portion of the third element is used, also use AMI 2427.

The final bracketed paragraph of the instruction should not be given when the case is submitted on interrogatories.

When a party seeks damages, also use AMI 2442. Use AMI 2428 with this instruction when there is an issue as to substantial performance.

If nominal damages are appropriate, refer to AMI 419 and modify that instruction for use in a contract case. If actual or liquidated damages are sought, refer to AMI 2442.

Any nonperformance of a duty under a contract is a breach. See Aon Risk Servs., Inc. v. Meadors, 100 Ark. App. 272, 285, 267 S.W.3d 603, 612 (2007) (citing Restatement (Second) of Contracts ).

Under Arkansas law, actual damage caused by the breach is not an essential element of a claim for breach of contract because a plaintiff is entitled to recover nominal damages in the absence of proof of actual damages. See Crumpacker v. Gary Reed Constr., Inc., 2010 Ark. App. 179, at 3 (“proof of causation is not an element of a claim for breach of contract or breach of implied warranty of habitability”); Dawson v. Temps Plus, Inc., 337 Ark. 247, 258–59, 987 S.W.2d 722, 728–29 (1999) (reversing damages award for failure of proof but instating nominal damages); Dilley v. Thomas, 106 Ark. 274, 280, 153 S.W. 110, 112 (1913) (reversing award of liquidated damages as penalty and entering judgment for nominal damages); W. Union Telegraph Co. v. Aubrey, 61 Ark. 613, 616, 33 S.W. 1063, 1064 (1896) (“Nominal damages may be recovered for the bare infringement of a right, or for a breach of contract unaccompanied by any actual damage.”); Blair v. United States, 150 F.2d 676, 678 (8th Cir. 1945) (“while the breach of contract gives rise to a right of action, it is nevertheless possible for a breach to occur without causing damage,” and in such instances, recovery is limited to nominal damages).

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