Contracts form the backbone of business and personal transactions in Texas. When one party fails to live up to its obligations, a breach of contract arises. But not every breach justifies ending the contract or pursuing damages—Texas law recognizes important distinctions between minor breaches, material breaches, and situations where the breaching party may still have an opportunity to cure. Understanding these concepts is essential for both enforcing and defending contract rights.

What Constitutes a Breach of Contract?

A breach of contract occurs when a party fails to perform a duty or promise set forth in a valid contract. This could involve:

• Failure to perform on time
• Failure to perform according to the terms of the agreement
• Failure to perform at all

However, not every breach is created equal. The law distinguishes between immaterial (minor) breaches and material breaches.

Material vs. Minor Breach

• Minor (Immaterial) Breach: Occurs when the breaching party’s failure is relatively small and does not destroy the overall purpose of the contract. For example, delivering goods one day late in a long-term supply contract may be a minor breach. The non-breaching party must still perform their obligations but can seek damages for the inconvenience.
• Material Breach: A material breach strikes at the heart of the agreement, depriving the other party of the essential benefit of the bargain. Under Texas law, a material breach generally excuses the non-breaching party from further performance and opens the door to remedies such as damages or termination.

Texas courts weigh several factors to determine whether a breach is material, including:

• The extent to which the non-breaching party is deprived of the benefit expected;
• The ability to adequately compensate for the lost benefit;
• The likelihood the breaching party will cure the failure; and
• The extent to which the breaching party acted in good faith.

Ability to Cure

Not all breaches automatically end the contractual relationship. In many agreements, the breaching party may have a right to cure within a specified time. This means that if they correct the breach quickly—such as providing missing documents or correcting defective work—the contract continues as if no breach occurred.

Even without a written cure clause, Texas courts sometimes consider whether the breaching party attempted to remedy the situation in good faith when assessing whether the breach is material.

Remedies for Breach of Contract in Texas

If a breach cannot be cured—or if the breach is material—the non-breaching party may pursue legal remedies. Under Texas law, common remedies include:

• Compensatory Damages: Designed to put the non-breaching party in the position they would have been in had the contract been performed.
• Consequential Damages: Losses indirectly caused by the breach, such as lost profits, if reasonably foreseeable at the time of contracting.
• Liquidated Damages: A fixed amount agreed to in advance in the contract, enforceable if reasonable and not a penalty.
• Specific Performance: A court order requiring the breaching party to perform their contractual duties, typically used in real estate and unique goods cases.
• Rescission: Canceling the contract and restoring the parties to their pre-contract positions.

Protecting Yourself in a Contract Dispute

If you are facing a potential breach of contract dispute in Texas:

1. Review the contract terms—paying close attention to cure provisions, notice requirements, and liquidated damages clauses.
2. Document performance and non-performance—keep records, communications, and evidence of damages.
3. Consult with an attorney—to evaluate whether the breach is material and determine the best course of action.

Final Thoughts

Breach of contract law in Texas hinges on whether the breach is material, whether there is an opportunity to cure, and what remedies are available. Understanding these distinctions can make the difference between salvaging a deal and pursuing litigation.

If you believe a contract has been breached—or if you are accused of breaching one—consulting with an experienced Texas attorney is critical to protecting your rights and minimizing losses.

At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.