N.C.P.I.—Civil 502.03

The (state number) issue reads:

"Did the defendant breach the contract (by non-performance)1?"

(You will answer this issue only if you have answered the (state number)

issue "Yes" in favor of the plaintiff.)

On this issue the burden of proof is on the plaintiff. This means that the

plaintiff must prove, by the greater weight of the evidence, two things:

First, that the time had come for the defendant to [perform] [abide by]

a material term of the contract. This means that, at the time of the alleged

breach (here select as appropriate):

[the plaintiff and the defendant were to perform their respective

obligations at the same time and the plaintiff was ready, willing and able to

perform the plaintiff’s obligation(s)]2

[there were no conditions precedent to the defendant's obligation to

perform]

[each condition precedent to the defendant's obligation to perform was

satisfied]

[[the defendant] [defendant's agent] had prevented the plaintiff from

performing a condition precedent to the defendant's obligation to perform]3

[A condition precedent is a requirement that some act or event occur or

not occur before a party to a contract becomes obligated to perform. A

condition precedent may be [written] [oral] [implied from the circumstances]]

[state any other condition which affects the defendant's obligation to

perform as supported by the evidence, e.g., condition subsequent4]

Second, that the defendant failed to [perform] [abide by] a material

term of the contract.5 A material term is one that is essential to the

transaction, that is, a term which, if omitted or modified, would have caused

one of the parties to withhold assent or to bargain for a substantially different

term. Not every term in a contract is material. A party's failure to [perform]

[abide by] a term that is not material is still a breach of the contract, but a

non-material breach does not excuse either party from performance of the

remaining terms of the contract.6 In determining whether a term is material,

you may consider the following factors:

[the subject matter and purpose of the contract]

[the intentions of the parties]

[the scope of performance reasonably expected by each party]

[the prior dealings of the parties]

[any custom, practice or usage so commonly known to other reasonable

persons, in similar situations, that the parties knew or should have known of

its existence]

[state other factors supported by the evidence].

In this case the plaintiff contends, and the defendant denies, that (here

select as appropriate):

[the plaintiff was ready, willing and able to perform the plaintiff’s

obligations]

[there were no conditions precedent to the defendant's obligation to

perform]

[[the condition precedent] [each condition precedent] to the defendant's

obligation to perform was satisfied] [as follows] [in one or more of the

following ways]: (Give the plaintiff's contention(s) by identifying each

condition which the plaintiff alleges has been satisfied)].

[[the defendant] [defendant's agent] had prevented the plaintiff from

performing a condition precedent to the defendant's obligation to perform] [as

follows] [in one or more of the following ways]: (Give the plaintiff's

contention(s) by identifying each condition which the plaintiff alleges has been

thwarted)].

[[the defendant] [defendant's agent] had it within [his] [her] [its] power

or control to perform a condition precedent to the defendant's obligation to

perform but failed to do so [without reasonable excuse] [in bad faith] [as

follows] [in one or more of the following ways]: (Give the plaintiff's

contention(s) by identifying each condition which the plaintiff alleges has been

sabotaged)].

[state contention regarding satisfaction of any other condition to the

defendant's obligation to perform, e.g., condition subsequent].

The plaintiff further contends, and the defendant denies, that the

defendant failed to [perform] [abide by] a material term of the contract [as

follows] [in one or more of the following ways]: (Give the plaintiff's

contention(s) by identifying each material term which the plaintiff alleges has

been breached).

Finally, as to the (state number) issue on which the plaintiff has the

burden of proof, if you find by the greater weight of the evidence that the time

had come for the defendant to [perform] [abide by] a material term of the

contract, and that the defendant failed to [perform] [abide by] a material term

of the contract, then it would be your duty to answer this issue "Yes" in favor

of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty to

answer this issue "No" in favor of the defendant.