Contracts II

Restatement Second of Contracts § 241


Circumstances Significant in Determining Whether a Failure Is Material

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In determining whether a failure to render or to offer performance is material, the following circumstances are significant:

  1. the extent to which the injured party will be deprived of the benefit which he reasonably expected;
  2. the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
  3. the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
  4. the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
  5. the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.