Partial Failure of Consideration


Failure of consideration may be total or partial. There is a total failure of consideration when a party has failed or refused to perform a substantial part of his bargain, thereby defeating the very object of the contract.  A total failure of consideration excuses the non-breaching party from its own duty to perform under the contract.  On the other hand, there is a partial failure of consideration when the failure to perform is insubstantial, so that sufficient consideration remains to sustain the contract.  Consequently, with a partial failure of consideration the non-breaching party is not excused from performance but rather is entitled to an award of damages.  The determination that consideration has failed is a question of fact, and will not be disturbed on appeal unless clearly erroneous.”  First National Bank of Belfield v. Burich, 367 N.W.2d 148, 153 (1985).

“A partial failure of consideration occurs when there has been an insubstantial breach that leaves sufficient consideration for sustaining the contract. Where a partial failure of consideration has occurred the proper remedy is to grant appropriate damages to the non-breaching party.”  Check Control, Inc. v. Shepherd, 462 N.W. 2d 644, 647 (N.D. 1990).

“A partial failure of consideration occurs when an individual does not deliver a portion of his promised performance.  Unlike complete failure of consideration, partial failure does not render the entire contract unenforceable. Instead, if the undelivered consideration is allocable to an independent covenant by the other party, the contract may be avoided on a pro tanto basis.”  Zemco Mfg., Inc. v. Navistar Intern. Trasp. Corp., 270 F.3d 1117, 1126 (7th Cir. 2001).

“A contract will be unenforceable where there is a total failure of consideration, or, under some circumstances, a partial failure of consideration . . .   A partial failure of consideration occurs when an individual does not deliver a portion of his promised performance.  Partial failure of consideration avoids a contract only “pro tanto”, or only to that extent.  Where a partial failure of consideration has occurred the proper remedy is to grant appropriate damages to the non-breaching party.  However, where a partial failure of consideration goes to the root of the contract or defeats the purpose of the contract, it may serve as a ground for rescission.”  Nelson v. Jones, 01-00182-KSC (D. Haw. Aug. 31, 2007).

“A partial failure of consideration does not excuse performance by the other party to a contract or give him a right of rescission. Such failure is merely ground for abatement of damages unless it goes to the root of the contract.”  United States v. Schaeffer, 319 F.2d 907, 911 (9th Cir. 1963)

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