§ 19-14 Contract - Breach of Contract - General Defenses

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§ 19-14 Contract - Breach of Contract - General Defenses

A. Abandonment

The abandonment of a contract is a matter of intention to be ascertained from the facts and circumstances surrounding the transaction from which the abandonment is claimed to have resulted. A party to a contract abandons it by undertaking a positive and unequivocal act which is inconsistent with the existence of the contract. To constitute abandonment of a contract by conduct, actions relied upon must be positive, unequivocal and inconsistent with existence of the contract. A contract will be treated as abandoned when the acts of one party inconsistent with its existence are acquiesced in by the other party.

An abandonment need not be express but may be inferred from the conduct of the parties and attendant circumstances. Abandonment of the contract by one party is the giving up of the right to a benefit due from the other party. An abandonment of the contract involves a breach of the implied obligation of good faith and fair dealing. A party willfully and without just cause or excuse abandoning the work he contracted to do before its completion cannot recover for services rendered under the contract.

Whether a party abandons a contract so as to forgive the other party's performance under the contract's terms is a question for the fact finder.

See General Sprinkler Corp. v. Loris Indus. Dev., Inc., 271 F. Supp. 551 (D.S.C. 1967); U.S. for Use and Benefit of Williams Elec. Co. v. Metric Constructors, Inc., 325 S.C. 129, 480 S.E.2d 447 (1997)(finding that if a party abandons contract, they also abandon their right to rely on "no damage for delay" clause); Quality Concrete Prods., Inc. v. Thomason, 253 S.C. 579, 172 S.E.2d 297 (1970); Porter-Constructors v. Dixon Motor Serv. Co., 171 S.C. 396, 172 S.E.419 (1934); Willms Trucking Co. v. JW Constr. Co., 314 S.C. 170, 442 S.E.2d 197 (Ct. App. 1994); Ro-Lo Enters. v. Hicks Enters., Inc., 294 S.C. 111, 362 S.E.2d 888 (Ct. App. 1987);17A Am. Jur. 2d Contracts § 543 (1991); Black's Law Dictionary 2-3 (6th ed. 1990).

B. Default

A party cannot take advantage of his own default in the performance of a contract. Where a contract is not performed, the party who is guilty of the first breach is generally the one upon whom rests all liability for the nonperformance.

See Silver v. Aabstract Pools & Spas, Inc., 376 S.C. 585, 658 S.E.2d 539 (Ct. App. 2008); Willms Trucking Co. v. JW Constr. Co., 314 S.C. 170, 442 S.E.2d 197 (Ct. App. 1994); 17A Am. Jur. 2d Contracts § 621 (1991).

C. Duress

Duress is a condition of mind produced by improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or form a contract not of his own volition. Duress has been defined as coercion that puts a person in such fear that he is "bereft" of the quality of mind essential to the making of a contract. Moreover, the contract must be obtained as a result of this state of mind. Whether or not duress exists in a particular case is a question of fact to be determined according to the circumstances of each case, such as the age, sex, and capacity of the party influenced.

The fear which makes it impossible for a person to exercise his own free will is not so much to be tested by the means employed to accomplish the act, as by the state of mind produced by the means invoked. If one of the parties to an agreement is in a position to dictate its terms to such an extent as to substitute his will for the will of the other party thereto, it is not a mutual, voluntary agreement, but becomes an agreement emanating entirely from his own mind.

If a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim.

See Cherry v. Shelby Mut. Plate Glass & Cas. Co., 191 S.C. 177, 4 S.E.2d 123 (1939); In re Nightingale's Estate, 182 S.C. 527, 189 S.E. 890 (1937); Willms Trucking Co. v. JW Constr. Co., 314 S.C. 170, 442 S.E.2d 197 (Ct. App. 1994); Restatement (Second) of Contracts § 175(1) (1981).

D. Illegality/Contravention of Public Policy

Illegality is a defense to a contract action. No person may be permitted to acquire a right of action from his own unlawful act and one who participates in an unlawful act cannot recover damages for the consequence of that act. This rule applies to contract actions.

An illegal contract has always been unenforceable. A contract which is violative of public policy, statutory law or provisions of the Constitution will not be enforced. A contract which contravenes public policy is void and an action cannot be maintained for either its breach or for inducing its breach.

See McMullen v. Hoffman, 174 U.S. 639, 19 S.Ct. 839, 43 L.Ed. 1117 (1899); White v. J.M. Brown Amusement Co., Inc., 360 S.C. 366, 601 S.E.2d 342 (2004) ("When a contract is originally legal, but performance becomes illegal due to a change in the law, any subsequent performance is against public policy and the party who has agreed to perform is excused from doing so."); Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993); Nelson v. Bryant, 265 S.C. 558, 220 S.E.2d 647 (1975)(courts will not aid in action to enforce illegal transaction; however, if there is independent contract, not forbidden by law, on which action is brought, independent contract is enforceable even

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