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Last edited 09 Aug 2024

Non-material breach

A non-material breach (also known as a minor breach or trivial breach) refers to a violation of a contract that does not significantly affect the overall purpose or outcome of the agreement. Unlike a material breach, a non-material breach is less severe and does not undermine the fundamental aspects of the contract. As a result, the non-breaching party generally does not have the right to terminate the contract but may still be entitled to seek remedies, usually in the form of damages.

A non-material breach does not substantially affect the project or the benefits the non-breaching party expected to receive. It might involve a minor deviation from the contract terms, but it does not prevent the overall fulfilment of the contract's purpose. Non-material breaches are often correctable or can be addressed without significant disruption to the project. The breaching party may be required to fix the issue, but the contract typically continues as planned.

In the case of a non-material breach, the non-breaching party cannot terminate the contract based solely on this breach. Instead, they might seek compensation or require the breach to be remedied.

Examples of non-material breaches might include:

A slight delay in completing a specific task that does not affect the overall project timeline or cause significant inconvenience could be considered a non-material breach.
If a contractor installs materials that are slightly different in appearance from those specified but still meet the required quality and functionality standards, this could be a non-material breach. The issue might be easily rectifiable or negligible in its impact on the project.
A minor administrative error, such as incorrect documentation that doesn't affect the actual work or payment processes, might be classified as a non-material breach.
If a contractor uses an alternative material that is of equivalent quality and performance to the one specified, without prior approval but without negatively affecting the project, it might be considered a non-material breach.

The non-breaching party can seek to have the breach corrected, and they may also claim damages if the breach has caused any financial loss or inconvenience. However, these damages are typically limited to the extent of the actual impact of the breach. The contract remains in force despite the non-material breach, and both parties are expected to continue fulfilling their obligations.

Whether a breach is considered material or non-material often depends on the specific circumstances and the terms of the contract. Courts will assess the significance of the breach in relation to the overall contract.