N.C.P.I.—Civil 502.10

The (state number) issue reads:

“Did the defendant breach the contract (by preventing the plaintiff from

being able to perform the plaintiff's obligations)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 defendant knowingly [prevented] [hindered] [made more

costly] the plaintiff's [performance of] [ability to abide by] a material term of

the contract.2

(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. 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]).

And Second, that, at the time the defendant engaged in the defendant’s

conduct, the plaintiff was willing to perform the plaintiff’s obligations as agreed

and would have done so but for the conduct of the defendant.

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

defendant prevented the plaintiff from being able to perform the plaintiff’s

obligations [as follows] [in one or more of the following ways]: (Give the

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

defendant's conduct allegedly prevented the plaintiff from performing.)

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

plaintiff was willing to perform the plaintiff’s obligations as agreed and would

have done so but for the conduct of the defendant.

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

defendant breached the contract (by preventing the plaintiff from being able

to perform the plaintiff's obligations), 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.