BREACH, in law any violation of a legal obligation. A continuing breach is one where the condition of things constituting a breach continues during a period of time, or where the acts constituting a breach are repeated at brief intervals. In pleading, a breach is that part of the complaint in which the violation of the de fendant's contract is stated. It is usual in as sumpsit, where the common-law rules of plead ing are still in force, to introduce the statement of the particular breach, with the allegation that the defendant, contriving and fraudulently intending craftily and subtilely to deceive and defraud the plaintiff, neglected and refused to perform, or performed the particular act, con trary to the previous stipulation. In debt, the breach or cause of action complained of must proceed only for the non-payment of money previously alleged to be payable; and such breach is very similar whether the action be in debt on simple contract, specialty, record or statute.
Breach of Contract.—The failure to per form a thing which one has contracted to per form. In all cases a failure to perform is not a breach of contract, because if he who under takes to perform a certain thing can show that he acted in good faith and has substantially fulfilled his contract, a small deviation is not held to constitute a breach. Formal refusal, therefore, to a demand for performance is not the sole requisite to a breach, as the default of itself constitutes a breach. See CONTRACT; DAMAGES; TORT; and consult the authorities un der those articles.
Breach of Promise of ac tion lies for this on the part of either man or woman, though, as a rule, only the latter is believed to be substantially injured or to de serve damages. There must be a legal and valid consideration, but as there are always mutual promises they are a sufficient consideration for each other. The minds of the parties must meet ; that is, there must be a request or propo sition on the one side and an assent on the other. If the communications between the par ties are verbal, the only questions which usually arise relate to evidence and proof. The exact words or time or manner of the promise need not be proved, but it may be inferred from the conduct of the parties and from the circum stances which usually attend a promise to marry. (15 Mass. 1; 2 Penn. St. 89). When the parties are at a distance from each other, and the offer is made by letter, it will be pre sumed to continue for a reasonable time for the consideration of the party addressed, and if accepted within a reasonable time and before it is expressly revoked, the contract is then complete.
A promise of marriage is not within the third clause of the fourth section of the statute of frauds relating to agreements made upon consideration of marriage; but if not to be per formed within one year it is within the fifth clause and must therefore be in writing in order to be binding. If no time be fixed and agreed upon for the performance of the contract, it is in contemplation of law a contract to marry within a reasonable period after request and either party may call upon the other to fulfil the engagement, and in case of default may bring an action for damages. If both parties lie by for an unreasonable period and do not treat the contract as continuing, it will be deemed to be abandoned by mutual consent. The defenses which may be made to an action for breach of promise of marriage are, of course, various, but it is only necessary to no tice in this place such as are in some degree peculiar. Thus, if either party has been con victed of an infamous crime or has sustained a bad character generally and the other was ignorant of it at the time of the engagement; or if the woman has committed fornication and this was unknown at the time to the man who promised to marry her; or if the woman is deeply involved in debt at the time of the en gagement and the fact is kept secret from her intended husband; or if false representations are made by the woman, or by her friends in collusion with her, as to her circumstances and situation in life and the amount of her fortune and marriage portion,— any of these facts, if properly pleaded, will constitute a good defense. If after the engagement either party is guilty of gross misconduct, inconsistent with the charac ter which he or she was fairly presumed to possess, the other party will be released. If the woman insists upon having her property settled to her own personal use, it is said that this will justify the man in breaking off the engagement. So, if the situation and position of either of the parties as regards his or her fitness for the marriage relation is materially and permanently altered for the worse (whether with or without the fault of such party) after the engagement, this will release the other party.